U.S.-China Strategic Competition in South
and East China Seas: Background and Issues
for Congress
Updated June 23, 2020
Congressional Research Service
https://crsreports.congress.gov
R42784

U.S.-China Strategic Competition in South and East China Seas

Summary
In an international security environment described as one of renewed great power competition,
the South China Sea (SCS) has emerged as an arena of U.S.-China strategic competition. U.S.-
China strategic competition in the SCS forms an element of the Trump Administration’s more
confrontational overall approach toward China, and of the Administration’s efforts for promoting
its construct for the Indo-Pacific region, called the Free and Open Indo-Pacific (FOIP).
China’s actions in the SCS in recent years—including extensive island-building and base-
construction activities at sites that it occupies in the Spratly Islands, as well as actions by its
maritime forces to assert China’s claims against competing claims by regional neighbors such as
the Philippines and Vietnam—have heightened concerns among U.S. observers that China is
gaining effective control of the SCS, an area of strategic, political, and economic importance to
the United States and its allies and partners. Actions by China’s maritime forces at the Japan-
administered Senkaku Islands in the East China Sea (ECS) are another concern for U.S.
observers. Chinese domination of China’s near-seas region—meaning the SCS and ECS, along
with the Yellow Sea—could substantially affect U.S. strategic, political, and economic interests in
the Indo-Pacific region and elsewhere.
Potential general U.S. goals for U.S.-China strategic competition in the SCS and ECS include but
are not necessarily limited to the following: fulfilling U.S. security commitments in the Western
Pacific, including treaty commitments to Japan and the Philippines; maintaining and enhancing
the U.S.-led security architecture in the Western Pacific, including U.S. security relationships
with treaty allies and partner states; maintaining a regional balance of power favorable to the
United States and its allies and partners; defending the principle of peaceful resolution of disputes
and resisting the emergence of an alternative “might-makes-right” approach to international
affairs; defending the principle of freedom of the seas, also sometimes called freedom of
navigation; preventing China from becoming a regional hegemon in East Asia; and pursing these
goals as part of a larger U.S. strategy for competing strategically and managing relations with
China.
Potential specific U.S. goals for U.S.-China strategic competition in the SCS and ECS include but
are not necessarily limited to the following: dissuading China from carrying out additional base-
construction activities in the SCS, moving additional military personnel, equipment, and supplies
to bases at sites that it occupies in the SCS, initiating island-building or base-construction
activities at Scarborough Shoal in the SCS, declaring straight baselines around land features it
claims in the SCS, or declaring an air defense identification zone (ADIZ) over the SCS; and
encouraging China to reduce or end operations by its maritime forces at the Senkaku Islands in
the ECS, halt actions intended to put pressure against Philippine-occupied sites in the Spratly
Islands, provide greater access by Philippine fisherman to waters surrounding Scarborough Shoal
or in the Spratly Islands, adopt the U.S./Western definition regarding freedom of the seas, and
accept and abide by the July 2016 tribunal award in the SCS arbitration case involving the
Philippines and China.
The Trump Administration has taken various actions for competing strategically with China in the
SCS and ECS. The issue for Congress is whether the Trump Administration’s strategy for
competing strategically with China in the SCS and ECS is appropriate and correctly resourced,
and whether Congress should approve, reject, or modify the strategy, the level of resources for
implementing it, or both.
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Introduction
This report provides background information and issues for Congress regarding U.S.-China
strategic competition in the South China Sea (SCS) and East China Sea (ECS). In an international
security environment described as one of renewed great power competition,1 the South China Sea
(SCS) has emerged as an arena of U.S.-China strategic competition. U.S.-China strategic
competition in the SCS forms an element of the Trump Administration’s more confrontational
overall approach toward China, and of the Administration’s efforts for promoting its construct for
the Indo-Pacific region, called the Free and Open Indo-Pacific (FOIP).2
China’s actions in the SCS in recent years have heightened concerns among U.S. observers that
China is gaining effective control of the SCS, an area of strategic, political, and economic
importance to the United States and its allies and partners. Actions by China’s maritime forces at
the Japan-administered Senkaku Islands in the East China Sea (ECS) are another concern for U.S.
observers. Chinese domination of China’s near-seas region3 could substantially affect U.S.
strategic, political, and economic interests in the Indo-Pacific region and elsewhere.
The issue for Congress is whether the Trump Administration’s strategy for competing
strategically with China in the SCS and ECS is appropriate and correctly resourced, and whether
Congress should approve, reject, or modify the strategy, the level of resources for implementing
it, or both. Decisions that Congress makes on these issues could substantially affect U.S.
strategic, political, and economic interests in the Indo-Pacific region and elsewhere.
For a brief overview of maritime territorial disputes in the SCS and ECS that involve China, see
“Maritime Territorial Disputes,” below, and Appendix A. Other CRS reports provide additional
and more detailed information on these disputes.4
Background
U.S. Interests in SCS and ECS
Although disputes in the SCS and ECS involving China and its neighbors may appear at first
glance to be disputes between faraway countries over a few rocks and reefs in the ocean that are
of seemingly little importance to the United States, the SCS and ECS can engage U.S. interests
for a variety of strategic, political, and economic reasons, including but not necessarily limited to
those discussed in the sections below.

1 For additional discussion of renewed great power competition, see CRS Report R43838, Renewed Great Power
Competition: Implications for Defense—Issues for Congress, by Ronald O'Rourke.
2 For more on the FOIP, see CRS Report R45396, The Trump Administration’s “Free and Open Indo-Pacific”: Issues
for Congress, coordinated by Bruce Vaughn.
3 In this report, the term near-seas region refers to the SCS and ECS, along with the Yellow Sea.
4 See CRS In Focus IF10607, South China Sea Disputes: Background and U.S. Policy, by Ben Dolven, Susan V.
Lawrence, and Ronald O'Rourke; CRS Report R42930, Maritime Territorial Disputes in East Asia: Issues for
Congress, by Ben Dolven, Mark E. Manyin, and Shirley A. Kan; CRS Report R44072, Chinese Land Reclamation in
the South China Sea: Implications and Policy Options, by Ben Dolven et al.; CRS Report R43894, China's Air Defense
Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
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U.S. Regional Allies and Partners, and U.S. Regional Security Architecture
The SCS, ECS, and Yellow Sea border three U.S. treaty allies: Japan, South Korea, and the
Philippines. (For additional information on the U.S. security treaties with Japan the Philippines,
see Appendix B.) In addition, the SCS and ECS (including the Taiwan Strait) surround Taiwan,
regarding which the United States has certain security-related policies under the Taiwan Relations
Act (H.R. 2479/P.L. 96-8 of April 10, 1979), and the SCS borders Southeast Asian nations that
are current, emerging, or potential U.S. partner countries, such as Singapore, Vietnam, and
Indonesia.
In a conflict with the United States, Chinese bases in the SCS and forces operating from them
would add to a regional network of Chinese anti-access/area-denial (A2/AD) capabilities intended
to keep U.S. military forces outside the first island chain (and thus away from China’s mainland
and Taiwan).5 Chinese bases in the SCS and forces operating from them could also help 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). In a conflict with the
United States, Chinese bases in the SCS and forces operating from them would be vulnerable to
U.S. attack. Attacking the bases and the forces operating from them, however, would tie down the
attacking U.S. forces for a time at least, delaying the use of those U.S. forces elsewhere in a
larger conflict, and potentially delay the advance of U.S. forces into the SCS. One analyst has
argued that destroying the bases and countering the forces operating from them would take much
more effort by U.S. forces than is commonly believed.6
Short of a conflict with the United States, Chinese bases in the SCS, and more generally, Chinese
domination over or control of its near-seas region could help China to do one or more of the
following on a day-to-day basis:
 control fishing operations and oil and gas exploration activities in the SCS;
 coerce, intimidate, or put political pressure on other countries bordering on the
SCS;
 announce and enforce an air defense identification zone (ADIZ) over the SCS;
 announce and enforce a maritime exclusion zone (i.e., a blockade) around
Taiwan;7
 facilitate the projection of Chinese military presence and political influence
further into the Western Pacific; and
 help achieve a broader goal of becoming a regional hegemon in its part of
Eurasia.

5 The term first island chain refers to a string of islands, including Japan and the Philippines, that encloses China’s
near-seas region. The term second island chain, which reaches out to Guam, refers to a line that can be drawn that
encloses both China’s near-seas region and the Philippine Sea between the Philippines and Guam. 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.
6 See Gregory B. Poling, “The Conventional Wisdom on China’s Island Bases Is Dangerously Wrong,” War on the
Rocks, January 10, 2020. See also John Power, “Has the US Already Lost the Battle for the South China Sea?” South
China Morning Post, January 18, 2020. See also David Geaney, “China’s Island Fortifications Are a Challenge to
International Norms,” Defense News, April 17, 2020.
7 For a discussion of this possibility, see Lyle J. Goldstein, “China Could Announce a ‘Total Exclusion Zone’ at Any
Time,” National Interest, October 25, 2018.
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In light of some of the preceding points, Chinese bases in the SCS, and more generally, Chinese
domination over or control of its near-seas region could complicate the ability of the United
States to
 intervene militarily in a crisis or conflict between China and Taiwan;
 fulfill U.S. obligations under U.S. defense treaties with Japan and the Philippines
and South Korea;
 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; and
 prevent the emergence of China as a regional hegemon in its part of Eurasia.8
A reduced U.S. ability to do one or more of the above could 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 architecture. Some observers believe that China is trying to use
disputes in the SCS and ECS to raise doubts among U.S. allies and partners in the region about
the dependability of the United States as an ally or partner, or to otherwise drive a wedge between
the United States and its regional allies and partners, so as to weaken the U.S.-led regional
security architecture and thereby facilitate greater Chinese influence over the region.
Some observers remain concerned that 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.
Most recently, those concerns have focused more on the possibility of a crisis or conflict between
China and Japan over the Senkaku Islands.
Principle of Nonuse of Force or Coercion
A key element of the U.S.-led international order that has operated since World War II 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
China’s actions in SCS and ECS challenge this principle and—along with Russia’s actions in
Crimea and eastern Ukraine—could help reestablish the very different principle of “might makes
right” (i.e., the law of the jungle) as a routine or defining characteristic of international relations.9
Principle of Freedom of the Seas
Overview
Another key element of the U.S.-led international order that has operated since World War II is
the principle of freedom of the seas, meaning 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

8 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. For additional discussion, see CRS In Focus IF10485, Defense Primer: Geography, Strategy, and
U.S. Force Design, by Ronald O'Rourke.
9 See, for example, Dan Lamothe, “Navy admiral warns of growing sense that ‘might makes right’ in Southeast Asia,”
Washington Post, March 16, 2016. Related terms and concepts include the law of the jungle or the quotation from the
Melian Dialogue in Thucydides’ History of the Peloponnesian War that “the strong do what they can and the weak
suffer what they must.”
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waters. Freedom of the seas is sometimes referred to as freedom of navigation, although the term
freedom of navigation is sometimes defined—particularly by parties who might not support
freedom of the seas—in a narrow fashion, to include merely the freedom for commercial ships to
pass through sea areas, as opposed to the freedom for both civilian and military ships and aircraft
to conduct various activities at sea or in the airspace above. A more complete way to refer to the
principle of freedom of the seas, as stated in the Department of Defense’s (DOD’s) annual
Freedom of Navigation (FON) report, is “the rights, freedoms, and uses of the sea and airspace
guaranteed to all nations by international law.”10 DOD states that freedom of the seas
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.11
The principle of freedom of the seas dates back about 400 years, to the early 1600s,12 and has
long been a matter of importance to the United States. DOD states that
Throughout its history, the United States has asserted a key national interest in preserving
the freedom of the seas, often calling on its military forces to protect that interest.
Following independence, one of the U.S. Navy’s first missions was to defend U.S.
commercial vessels in the Atlantic Ocean and Mediterranean Sea from pirates and other
maritime threats. The United States went to war in 1812, in part, to defend its citizens’
rights to commerce on the seas. In 1918, President Woodrow Wilson named “absolute
freedom of navigation upon the seas” as one of the universal principles for which the
United States and other nations were fighting World War I. Similarly, before World War
II, President Franklin Roosevelt declared that our military forces had a “duty of
maintaining the American policy of freedom of the seas.”13
China’s Position
Some observers are concerned that China’s interpretation of law of the sea and its actions in the
SCS pose a significant challenge to the principle of freedom of the seas. Matters of particular
concern in this regard include China’s nine-dash line in the SCS, China’s apparent narrow
definition of freedom of navigation, and China’s position that coastal states have the right to
regulate the activities of foreign military forces in their exclusive economic zones (EEZs) (see
“China’s Approach to the SCS and ECS,” below, and Appendix A and Appendix E).14

10 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report Fiscal
Year 2018, Pursuant to Section 1275 of the National Defense Authorization Act for Fiscal Year 2018, December 31,
2018, p. 2.
11 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 1, 2.
12 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. For further discussion, see “Hugo Grotius’ ‘Mare Liberum’—
400th Anniversary,” International Law Observer, March 10, 2009.
13 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report Fiscal
Year 2018, Pursuant to Section 1275 of the National Defense Authorization Act for Fiscal Year 2018, December 31,
2018, p. 1.
14 A country’s EEZ includes waters extending up to 200 nautical miles from its land territory. EEZs were established as
a feature of international law by United Nations Convention on the Law of the Sea (UNCLOS). Coastal states have the
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Observers are concerned that a challenge to freedom of the seas in the SCS could have
implications for the United States 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.15 In general, limiting or weakening the principle of freedom of the seas could represent
a departure or retreat from the roughly 400-year legal tradition of treating the world’s oceans as
international waters (i.e., as a global commons) and as a consequence alter the international legal
regime governing sovereignty over much of the surface of the world.16
More specifically, if China’s position on the issue of whether coastal states have the right 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, 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.17 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
outside a country’s EEZ (i.e., more than 200 miles offshore) would reduce the inland reach and
responsiveness of U.S. ship-based sensors, aircraft, and missiles, and make it more difficult for
the United States 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, U.S. foreign policy goals, or U.S. grand strategy.18
Trade Routes and Hydrocarbons
Major commercial shipping routes pass through the SCS, which links the Western Pacific to the
Indian Ocean and the Persian Gulf. An estimated $3.4 trillion worth of international shipping
trade passes through the SCS each year.19 DOD states that “the South China Sea plays an
important role in security considerations across East Asia because Northeast Asia relies heavily
on the flow of oil and commerce through South China Sea shipping lanes, including more than 80
percent of the crude oil [flowing] to Japan, South Korea, and Taiwan.”20 In addition, the ECS and

right UNCLOS to regulate foreign economic activities in their own EEZs.
15 See, for example, Lyle J. Goldstein, “China Studies the Contours of the Gray Zone; Beijing Strategists Go to School
on Russian Tactics in the Black Sea,” National Interest, August 27, 2019.
16 See, for example, Roncevert Ganan Almond, “The Extraterrestrial [Legal] Impact of the South China Sea Dispute,”
The Diplomat, October 3, 2017.
17 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.)
18 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.
19 “How Much Trade Transits the South China Sea?” China Power (CSIS), accessed July 10, 2018, at
https://chinapower.csis.org/much-trade-transits-south-china-sea/.
20 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2017, May 15, 2017, p. 41. See also Christian Edwards, “The South China Sea Is Fabled for Its
Hidden Energy Reserves and China Wants to Block Outsiders Like the US from Finding Them,” Business Insider,
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SCS contain potentially significant oil and gas exploration areas.21 Exploration activities there
could potentially involve U.S. firms. The results of exploration activities there could eventually
affect world oil prices.22
Interpreting China’s Role as a Major World Power
China’s actions in the SCS and ECS could influence assessments that U.S. and other observers
make about China’s role as a major world power, particularly regarding China’s approach to
settling disputes between states (including whether China views force and coercion as acceptable
means for settling such disputes, and consequently whether China believes that “might makes
right”), China’s views toward the meaning and application of international law, and whether
China views itself more as a stakeholder and defender of the current international order, or
alternatively, more as a revisionist power that will seek to change elements of that order that it
does not like.
U.S.-China Relations in General
Developments in the SCS and ECS could affect U.S.-China relations in general, which could
have implications for other issues in U.S.-China relations.23
Maritime Territorial and EEZ Disputes Involving China
This section provides a brief overview of maritime territorial and EEZ disputes involving China.
For additional details on these disputes (including maps), see Appendix A. In addition, other
CRS reports provide additional and more detailed information on the maritime territorial
disputes.24 For background information on treaties and international agreements related to the
disputes, see Appendix C. For background information on a July 2016 international tribunal
award in an SCS arbitration case involving the Philippines and China, see Appendix D.

November 13, 2018.
21 See, for example, Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August
2015, p. 5.
The SCS and ECS also contain significant fishing grounds that are of interest primarily to China and other countries in
the region. See, for example, Michael Perry, “Cooperative Maritime Law Enforcement and Overfishing in the South
China Sea,” Center for International Maritime Security (CIMSEC), April 6, 2020; James G. Stavridis and Johan
Bergenas, “The Fishing Wars Are Coming,” Washington Post, September 13, 2017; Keith Johnson, “Fishing Disputes
Could Spark a South China Sea Crisis,” Foreign Policy, April 7, 2012.
22 For a contrary view regarding the importance of the SCS in connection with trade routes and hydrocarbons, see
Marshall Hoyler, “The South China Sea Is Overrated, Assigning the South China Sea Geostrategic Importance Based
on Its Popular Sea Lanes or Assumed Oil and Gas Reserves Is Suspect,” U.S. Naval Institute Proceedings, June 2019.
23 For discussions of U.S.-China relations, see CRS In Focus IF10119, U.S.-China Relations, by Susan V. Lawrence,
Michael F. Martin, and Andres B. Schwarzenberg, and CRS Report R41108, U.S.-China Relations: An Overview of
Policy Issues, by Susan V. Lawrence.
24 See CRS In Focus IF10607, South China Sea Disputes: Background and U.S. Policy, by Ben Dolven, Susan V.
Lawrence, and Ronald O'Rourke; CRS Report R42930, Maritime Territorial Disputes in East Asia: Issues for
Congress, by Ben Dolven, Mark E. Manyin, and Shirley A. Kan; CRS Report R44072, Chinese Land Reclamation in
the South China Sea: Implications and Policy Options, by Ben Dolven et al.; CRS Report R43894, China's Air Defense
Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
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Maritime Territorial Disputes
China is a party to multiple maritime territorial disputes in the SCS and ECS, including in
particular the following:
 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.
EEZ Dispute25
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 other countries is that while the United Nations Convention on the Law of
the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states
the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it
does not give coastal states the right to regulate foreign military activities in the parts of their
EEZs beyond their 12-nautical-mile territorial waters.26 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. 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 dating back at least to
2001.
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.

25 In this report, the term EEZ dispute is used 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.
26 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.
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 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 several of the
past U.S.-Chinese incidents at sea have occurred.
From the U.S. perspective, 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.
China’s Approach to the SCS and ECS
This section provides a brief overview of China’s approach to the SCS and ECS. For additional
information on China’s approach to the SCS and ECS, see Appendix E.
In General
China’s approach to maritime disputes in the SCS and ECS, and to strengthening its position over
time in the SCS, can be characterized in general as follows:
 China appears to have identified the assertion and defense of its maritime
territorial claims in the SCS and ECS, and the strengthening of its position in the
SCS, as important national goals.
 To achieve these goals, China appears to be employing an integrated, whole-of-
society strategy that includes diplomatic, informational, economic, military,
paramilitary/law enforcement, and civilian elements.
 In implementing this integrated strategy, China appears to be persistent, patient,
tactically flexible, willing to expend significant resources, and willing to absorb
at least some amount of reputational and other costs that other countries might
seek to impose on China in response to China’s actions.27
Table 1 summarizes China’s apparent goals relating to the South China, and the types of actions
it undertakes in support of those goals, as assessed by the Center for a New American Security in
a January 2020 report on China’s strategy for the South China Sea.
“Salami-Slicing” Strategy and Gray Zone Operations
Observers frequently characterize China’s approach to the SCS and ECS 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. Other observers have referred to China’s
approach as a strategy of gray zone operations (i.e., operations that reside in a gray zone between
peace and war), of creeping annexation28 or creeping invasion,29 or as a “talk and take” strategy,

27 For additional discussion, see Patrick M. Cronin and Ryan Neuhard, Total Competition, China’s Challenge in the
South China Sea, Center for a New American Security, January 2020, pp. 5-28; Denny Roy, “How China Is Slow
Conquering the South China Sea,” National Interest, May 7, 2020; and Kerry K. Gershaneck, “China’s ‘Political
Warfare’ Aims at South China Sea,” Asia Times, July 3, 2018.
28 See, for example, Alan Dupont, “China’s Maritime Power Trip,” The Australian, May 24, 2014.
29 Jackson Diehl, “China’s ‘Creeping Invasion,” Washington Post, September 14, 2014.
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meaning a strategy in which China engages in (or draws out) negotiations while taking actions to
gain control of contested areas.30 A March 17, 2020, press report in China’s state-controlled
media stated that “Chinese military experts on Tuesday [March 17] suggested the use of non-
lethal electromagnetic weapons, including low-energy laser devices, in expelling US warships
that have been repeatedly intruding into the South China Sea in the past week.”31
Table 1. China’s Apparent Goals and Supporting Actions for South China Sea
As assessed in January 2020 CNAS report
Apparent goals
Intimidate
Tempt neighbors
Reinforce
neighbors and
to cooperate in
image of
encourage
exchange for
China as an
Rally support
Deter
appeasement/
future economic
economic
Supporting actions
domestically
U.S.
compliance
benefits
powerhouse
PLA operationsa
X
X
X

China Coast Guard operationsb
X
X
X

Maritime militia swarming

X

Dredging fleet and island
X
X
X

construction team operationsc
Operations by state banks and

X
X
state-owned enterprisesd
State media operationse
X
X
X

Source: Adapted by CRS from table on page 20 of Patrick M. Cronin and Ryan Neuhard, Total Competition,
China’s Challenge in the South China Sea, Center for a New American Security, January 2020.
a. Includes military exercises, weapons tests, port visits, patrols throughout the SCS, military parades, and
participation in echelon formation.
b. Includes deployment of large vessels and participation in echelon formation.
c. Includes large-scale dredging and island building, and construction of permanent facilities on disputed
features.
d. Highly visible economic projects around the region, such as bridges, ports, and rail lines.
e. Includes propaganda about the PLA, China’s influence (including its military and economic might and its
political importance), U.S. decline or weakness, and other states conceding to China’s preferences.
Some observers argue that China is using the period of the COVID-19 pandemic to further
implement its salami-slicing strategy in the SCS while the world’s attention is focused on
addressing the pandemic.32 In a video conference with ASEAN foreign ministers in April 2020,

30 The strategy has been called “talk and take” or “take and talk.” See, for example, Anders Corr, “China’s Take-And-
Talk Strategy In The South China Sea,” Forbes, March 29, 2017. See also Namrata Goswami, “Can China Be Taken
Seriously on its ‘Word’ to Negotiate Disputed Territory?” The Diplomat, August 18, 2017.
31 Liu Xuanzun, “US Intrusions in S.China Sea Can Be Stopped by Electromagnetic Weapons: Experts,” Global Times,
March 17, 2020.
32 See, for example, Tsukasa Hadano and Alex Fang, “China Steps Up Maritime Activity with Eye on Post-pandemic
Order,” Nikkei Asian Review, May 13, 2020; Harsh Pant, “China’s Salami Slicing overdrive: It’s Flexing Military
Muscles at a Time When Covid Preoccupies the Rest of the World,” Times of India, May 13, 2020; Veeramalla
Anjaiah, “How To Tame Aggressive China In South China Sea Amid COVID-19 Crisis—OpEd,” Eurasia Review,
May 14, 2020; Robert A. Manning and Patrick M. Cronin, “Under Cover of Pandemic, China Steps Up Brinkmanship
in South China Sea,” Foreign Policy, May 14, 2020. Another observer, offering a somewhat different perspective,
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Secretary of State Mike Pompeo reportedly stated: “It is important to highlight how the Chinese
Communist party is exploiting the world’s focus on the Covid-19 crisis by continuing its
provocative behaviour. The CCP [Chinese Communist Party] is … coercing its neighbours in the
South China Sea.”33
Island Building and Base Construction
Perhaps more than any other set of actions, China’s island-building (aka land-reclamation) and
base-construction activities at sites that it occupies in the Paracel Islands and Spratly Islands in
the SCS have heightened concerns among U.S. observers that China is rapidly gaining effective
control of the SCS. China’s large-scale island-building and base-construction activities in the
SCS appear to have begun around December 2013, and were publicly reported starting in May
2014. Awareness of, and concern about, the activities appears to have increased substantially
following the posting of a February 2015 article showing a series of “before and after” satellite
photographs of islands and reefs being changed by the work.34
China occupies seven sites in the Spratly Islands. It has engaged in island-building and facilities-
construction activities at most or all of these sites, and particularly at three of them—Fiery Cross
Reef, Subi Reef, and Mischief Reef, all of which now feature lengthy airfields as well as
substantial numbers of buildings and other structures. Although other countries, such as Vietnam,
have engaged in their own island-building and facilities-construction activities at sites that they
occupy in the SCS, these efforts are dwarfed in size by China’s island-building and base-
construction activities in the SCS.35

states
Recent developments in the South China Sea might lead one to assume that Beijing is taking
advantage of the coronavirus crisis to further its ambitions in the disputed waterway. But it’s
important to note that China has been following a long-term game plan in the sea for decades.
While it’s possible that certain moves were made slightly earlier than planned because of the
pandemic, they likely would have been made in any case, sooner or later.
(Steve Mollman, “China’s South China Sea Plan Unfolds Regardless of the Coronavirus,” Quartz,
May 9, 2020.)
A May 3, 2020, press report stated
Analysts reject the idea that Beijing has embarked on a new South China Sea campaign during the
pandemic. But they do believe the outbreak is having an effect on perceptions of Chinese policy.
“China is doing what it is always doing in the South China Sea, but it is a lot further along the road
towards control than it was a few years ago,” said Gregory Poling, director of the Asia Maritime
Transparency Initiative at CSIS, the Washington-based think-tank.
(Kathrin Hille and John Reed, “US Looks to Exploit Anger over Beijing’s South China Sea
Ambitions,” Financial Times, May 3, 2020.)
33 As quoted in Kathrin Hille and John Reed, “US Looks to Exploit Anger over Beijing’s South China Sea Ambitions,”
Financial Times, May 3, 2020. (Ellipsis as in original.)
34 Mira Rapp-Hooper, “Before and After: The South China Sea Transformed,” Asia Maritime Transparency Initiative
(CSIS), February 18, 2015.
35 See, for example, “Vietnam’s Island Building: Double-Standard or Drop in the Bucket?,” Asia Maritime
Transparency Initiative (CSIS), May 11, 2016. For additional details on China’s island-building and base-construction
activities in the SCS, see, in addition to Appendix E, CRS Report R44072, Chinese Land Reclamation in the South
China Sea: Implications and Policy Options, by Ben Dolven et al.
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Other Chinese Actions That Have Heightened Concerns
In addition to island-building and base-construction activities, additional Chinese actions in the
SCS and ECS that have heightened concerns among U.S. observers include the following, among
others:
 China’s actions in 2012, following a confrontation between Chinese and
Philippine ships at Scarborough Shoal in the SCS, to gain de facto control over
access to the shoal and its fishing grounds;
 China’s announcement on November 23, 2013, of an air defense identification
zone (ADIZ) over the ECS that includes airspace over the Senkaku Islands;36
 frequent patrols by Chinese Coast Guard ships—some observers refer to them as
harassment operations—at the Senkaku Islands;
 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;37
 a growing civilian Chinese presence on some of the sites in the SCS occupied by
China in the SCS, including both Chinese vacationers and (in the Paracels)
permanent settlements; and
 the movement of some military systems to its newly built bases in the SCS.
Use of Coast Guard Ships and Maritime Militia
China asserts and defends its maritime claims not only with its navy, but also with its coast guard
and its maritime militia. Indeed, China employs its coast guard and maritime militia more
regularly and extensively than its navy in its maritime sovereignty-assertion operations. DOD
states that China’s navy, coast guard, and maritime militia together “form the largest maritime
force in the Indo-Pacific.”38
Apparent Narrow Definition of “Freedom of Navigation”
China regularly states that it supports freedom of navigation and has not interfered with freedom
of navigation. China, however, appears to hold a narrow definition of freedom of navigation that
is centered on the ability of commercial cargo ships to pass through international waters. In
contrast to the broader U.S./Western definition of freedom of navigation (aka freedom of the
seas), the Chinese definition does not appear to include operations conducted by military ships
and aircraft. It can also be noted that China has frequently interfered with commercial fishing
operations by non-Chinese fishing vessels—something that some observers regard as a form of
interfering with freedom of navigation for commercial ships.

36 See CRS Report R43894, China's Air Defense Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
37 See, for example, Patricia Lourdes Viray, “China’s Blockade of Ayungin Shoal Resupply ‘Objectionable’—Palace,”
Philstar, September 23, 2019; Patricia Louordes Viray, “China Coast Guard Blocked Resupply Mission to Ayungin
Shoal,” Philstar, September 19, 2019; Audrey Morallo, “China’s Navy, Coast Guard ‘Harassed’ Filipino Troops on
Resupply Mission on Ayungin—Alejano,” Philstar, May 30, 2018.
38 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2018, p. 16. See also Andrew S. Erickson, “Maritime Numbers Game, Understanding and
Responding to China’s Three Sea Forces,” Indo-Pacific Defense Forum, January 28, 2019.
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Position Regarding Regulation of Military Forces in EEZs
As mentioned earlier, 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.
Depiction of United States as Outsider Seeking to “Stir Up Trouble”
Along with its preference for treating territorial disputes on a bilateral rather than multilateral
basis (see Appendix E for details), China resists and objects to U.S. involvement in maritime
disputes in the SCS and ECS. Statements in China’s state-controlled media sometimes depict the
United States as an outsider or interloper whose actions (including freedom of navigation
operations) are meddling or seeking to “stir up trouble” in an otherwise peaceful regional
situation. Potential or actual Japanese involvement in the SCS is sometimes depicted in China’s
state-controlled media in similar terms. Depicting the United States in this manner can be viewed
as consistent with goals of attempting to drive a wedge between the United States and its allies
and partners in the region and of ensuring maximum leverage in bilateral (rather than multilateral)
discussions with other countries in the region over maritime territorial disputes.
Assessments of China’s Strengthening Position in SCS
Some observers assess that China’s actions in the SCS have achieved for China a more dominant
or more commanding position in the SCS. For example, U.S. Navy Admiral Philip Davidson, in
responses to advance policy questions from the Senate Armed Services Committee for an April
17, 2018, hearing before the committee to consider nominations, including Davidson’s
nomination to become Commander, U.S. Pacific Command (PACOM),39 stated that “China is
now capable of controlling the South China Sea in all scenarios short of war with the United
States.”40 For additional assessments of China’s strengthening position in the SCS, see Appendix
F.
U.S. Position on Regarding Issues Relating to SCS and ECS
Some Key Elements
The U.S. position regarding issues relating to the SCS and ECS includes the following elements,
among others:
 Freedom of the seas:
 The United States supports the principle of freedom of the 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.
 U.S. forces routinely conduct freedom of navigation (FON) assertions
throughout the world. These operations are designed to be conducted in

39 The name of the command has since been changed to the U.S. Indo-Pacific Command (INDOPACOM).
40 Advance Policy Questions for Admiral Philip Davidson, USN Expected Nominee for Commander, U.S. Pacific
Command, p. 18. See also pp. 8, 16, 17, 19, and 43. See also Hannah Beech, “China’s Sea Control Is a Done Deal,
‘Short of War With the U.S.,’” New York Times, September 20, 2018.
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accordance with international law and demonstrate that the United States will
fly, sail, and operate wherever international law allows, regardless of the
location of excessive maritime claims and regardless of current events.41
 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.
The United States will continue to operate its military ships in the EEZs of
other countries consistent with this position. (For additional information
regarding the U.S. position on the issue of operational rights of military ships
in the EEZs of other countries, see Appendix G.)
 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.
 Maritime territorial disputes:
 The United States takes no position on competing claims to sovereignty over
disputed land features in the ECS and SCS, but the United States does have a
position on how competing claims should be resolved: These disputes, like
international disputes in general, should be resolved peacefully, without
coercion, intimidation, threats, or the use of force, and in a manner consistent
with international law.
 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 island-building with the intent to militarize outposts
on disputed land features is consistent with the region’s desire for peace and
stability.
 The Senkaku Islands are under the administration of Japan. Unilateral
attempts to change the status quo there raise tensions and do nothing under
international law to strengthen territorial claims.
 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. China’s maritime claims in the SCS, exemplified
by the preposterous nine-dash line, are unfounded, unlawful, and
unreasonable, and are without legal, historic, or geographic merit.42
 China’s unilateral efforts to assert illegitimate maritime claims threaten other
nations’ access to vital natural resources, undermine the stability of regional

41 Statements such as this one, including in particular the phrase “the United States will fly, sail, and operate wherever
international law allows,” have become recurring elements of U.S. statements issued either in connection with specific
FON operations or as general statements of U.S. policy regarding freedom of the seas. See, for example, the Navy
statement quoted in Ben Werner, “Beijing Irked at Twin U.S. South China Sea FONOPS,” USNI News, November 22,
2019.
42 Department of State, A Free and Open Indo-Pacific, Advancing a Shared Vision, November 4, 2019, states on page
23: “PRC maritime claims in the South China Sea, exemplified by the preposterous ‘nine-dash line,’ are unfounded,
unlawful, and unreasonable. These claims, which are without legal, historic, or geographic merit, impose real costs on
other countries. Through repeated provocative actions to assert the nine-dash line, Beijing is inhibiting ASEAN
members from accessing over $2.5 trillion in recoverable energy reserves, while contributing to instability and the risk
of conflict.”
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energy markets, and increase the risk of conflict.43 The United States will not
accept attempts to assert unlawful maritime claims at the expense of law-
abiding nations.44
An April 9, 2020, DOD statement stated
The Department of Defense is greatly concerned by reports of a China Coast Guard vessel's
collision with and sinking of a Vietnam fishing vessel in the vicinity of the Paracel Islands
in the South China Sea.
The PRC's behavior stands in contrast to the United States' vision of a free and open Indo-
Pacific region, in which all nations, large and small, are secure in their sovereignty, free
from coercion, and able to pursue economic growth consistent with accepted international
rules and norms. The United States will continue to support efforts by our allies and
partners to ensure freedom of navigation and economic opportunity throughout the entire
Indo-Pacific.
The COVID-19 pandemic underscores the importance of the rules based international
order, as it sets the conditions that enable us to address this shared threat in a way that is
transparent, focused, and effective. We call on all parties to refrain from actions that would
destabilize the region, distract from the global response to the pandemic, or risk needlessly
contributing to loss of life and property.45
In an April 22, 2020, statement, Secretary of State Mike Pompeo stated
Even as we fight the [COVID-19] outbreak, we must remember that the long-term threats
to our shared security have not disappeared. In fact, they’ve become more prominent.
Beijing has moved to take advantage of the distraction, from China’s new unilateral
announcement of administrative districts over disputed islands and maritime areas in the
South China Sea, its sinking of a Vietnamese fishing vessel earlier this month, and its
“research stations” on Fiery Cross Reef and Subi Reef. The PRC continues to deploy
maritime militia around the Spratly Islands and most recently, the PRC has dispatched a
flotilla that included an energy survey vessel for the sole purpose of intimidating other
claimants from engaging in offshore hydrocarbon development. It is important to highlight
how the Chinese Communist Party (CCP) is exploiting the world’s focus on the COVID-
19 crisis by continuing its provocative behavior. The CCP is exerting military pressure and
coercing its neighbors in the SCS, even going so far as to sink a Vietnamese fishing vessel.
The U.S. strongly opposes China’s bullying and we hope other nations will hold them to
account too.46
An April 29, 2020, statement from the U.S. Navy 7th Fleet stated

43 In a November 20, 2019, speech in Hanoi, Secretary of Defense Mark Esper reportedly stated, “China’s unilateral
efforts to assert illegitimate maritime claims threaten other nations’ access to vital natural resources, undermine the
stability of regional energy markets, and increase the risk of conflict.” (Phil Stewart and James Pearson, “U.S. to
Provide Ship to Vietnam to Boost South China Sea Patrols,” Reuters, November 20, 2019.)
44 In a November 20, 2019, speech in Hanoi, Secretary of Defense Mark Esper reportedly stated, “We will not accept
attempts to assert unlawful maritime claims at the expense of law-abiding nations.” (As quoted in Robert Burns, “Esper
Accuses China of Intimidating Smaller Asian Nations,” Associated Press, November 20, 2019.)
45 Department of Defense, “China Coast Guard Sinking of a Vietnam Fishing Vessel,” April 9, 2020.
46 Department of State, “The United States and ASEAN are Partnering to Defeat COVID-19, Build Long-Term
Resilience, and Support Economic Recovery,” Press Statement, Michael R. Pompeo, Secretary of State, April 22, 2020.
See also A. Ananthalakshmi and Rozanna Latiff, “U.S. Says China Should Stop 'Bullying Behaviour' in South China
Sea,” Reuters, April 18, 2020; Gordon Lubold and Dion Nissenbaum, “With Trump Facing Virus Crisis, U.S. Warns
Rivals Not to Seek Advantage,” Wall Street Journal, April 20, 2020; Brad Lendon, “Coronavirus may be giving
Beijing an opening in the South China Sea,” CNN, April 7, 2020; Agence France-Presse, “US Warns China Not to
'Exploit' Virus for Sea Disputes,” Channel News Asia, April 6, 2020.
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Unlawful and sweeping maritime claims in the South China Sea pose a serious threat to
the freedom of the seas, including the freedoms of navigation and overflight and the right
of innocent passage of all ships.
The U.S. position on the South China Sea is no different than that of any other area around
the world where the international law of the sea as reflected in the 1982 Law of the Sea
Convention provides for certain rights and freedoms and other lawful uses of the sea to all
nations. The international community has an enduring role in preserving the freedom of
the seas, which is critical to global security, stability, and prosperity.
As long as some countries continue to claim and assert limits on rights that exceed what is
provided for under international law as reflected in the Law of the Sea Convention, the
United States will continue to demonstrate its resolve to uphold these rights and freedoms
for all. No member of the international community should be intimidated or coerced into
giving up their rights and freedoms.
China, Taiwan, Vietnam, Malaysia, Brunei and the Philippines each claim sovereignty over
some or all of the Spratly Islands. China, Vietnam, and Taiwan purport to require either
permission or advance notification before a military vessel or warship engages in “innocent
passage” through the territorial sea. Under international law as reflected in the Law of the
Sea Convention, the ships of all States—including their warships—enjoy the right of
innocent passage through the territorial sea. The unilateral imposition of any authorization
or advance-notification requirement for innocent passage is not permitted by international
law, so the United States challenged those requirements. By engaging in innocent
passage[s] without giving prior notification to or asking permission from any of the
claimants, the United States challenge[s] the unlawful restrictions imposed by China,
Taiwan, and Vietnam. The United States demonstrated that innocent passage may not be
subject to such restrictions.
U.S. forces operate in the South China Sea on a daily basis, as they have for more than a
century. All of our operations are designed to be conducted in accordance with
international law and demonstrate the United States will fly, sail, and operate wherever
international law allows—regardless of the location of excessive maritime claims and
regardless of current events.
The United States upholds freedom of navigation as a principle. The Freedom of
Navigation Program’s missions are conducted peacefully and without bias for or against
any particular country. These missions are based in the rule of law and demonstrate our
commitment to upholding the rights, freedoms, and lawful uses of the sea and airspace
guaranteed to all nations.47
A June 3, 2020, press report states:
The United States has submitted a diplomatic note to the United Nations rebuking China’s
sweeping maritime and territorial claims in the South China Sea, which drew a rapid
response from Beijing accusing Washington on Wednesday of trying to “stir up trouble.”
U.S. Representative to the UN Kelly Craft sent UN Secretary-General Antonio Guterres
the note Monday [June 1] and requested it be posted to the UN body responsible for
evaluating countries’ claims to the seabed off their coasts. The note cited the UN
Convention on the Law of the Sea (UNCLOS) and a 2016 tribunal between the Philippines
and China that ruled China’s claims in the South China Sea were invalid under international
law.

47 Source: Text of statement as reprinted in Sam LaGrone, “USS Bunker Hill Conducts 2nd South China Sea Freedom
of Navigation Operation This Week,” USNI News, April 29, 2020. The 7th Fleet issued the statement in connection with
a freedom of navigation (FON) operation conducted by a U,S, Navy ship in the South China Sea on April 29, 2020, that
is shown in Table 2.
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The U.S. statement was the latest in a long series of diplomatic notes and protests from
other countries against China’s vague, sweeping claims. It follows notes by Indonesia,
Vietnam, and the Philippines. It also comes at a time of heightened tensions in the South
China Sea and growing solidarity between other claimants concerned about China’s
aggressive behavior.
“In asserting such vast maritime claims in the South China Sea, China purports to restrict
the rights and freedoms, including the navigational rights and freedoms, enjoyed by all
States,” Craft’s note read. The note specifically mentioned the objections raised by the
Philippines, Vietnam, and Indonesia.
“The United States again urges China to conform its maritime claims to international law
as reflected in the Convention; to comply with the Tribunal’s July 12, 2016 decision; and
to cease its provocative activities in the South China Sea,” it said.48
Freedom of Navigation (FON) Program
U.S. Navy ships challenge what the United States views as excessive maritime claims made by
other countries, and otherwise carry out assertions of operational rights, as part of the U.S. FON
program for challenging maritime claims that the United States believes to be inconsistent with
international law. The FON program began in 1979, involves diplomatic activities as well as
operational assertions by U.S. Navy ships, and is global in scope, encompassing activities and
operations directed not only at China, but at numerous other countries around the world,
including U.S. allies and partner states.
DOD’s record of “excessive maritime claims DOD challenged through operational assertions and
activities during the period of October 1, 2017, through September 30, 2018, to preserve the
rights, freedoms, and uses of the sea and airspace guaranteed to all nations by international law”
includes a listing for multiple challenges that were conducted to challenge Chinese claims.49
In a November 19, 2019, speech in Manila, Secretary of Defense Mark Esper reportedly stated
that the United States had conducted “more freedom of navigation operations in the past year or
so than we have in the past 20-plus years.”50 For additional information on the FON program, see
Appendix H.

48 “U.S. Sends Note to UN Rebuking China’s Claims in South China Sea,” Radio Free Asia, June 3, 2020. See also Bill
Gertz, “U.S. Protests Beijing Illegal Sea Claim,” Washington Times, June 3, 2020; Kristin Huang, “South China Sea:
United States Urges United Nations to Reject China’s Claims,” South China Morning Post, June 3, 2020; Associated
Press, “US Rejects China Maritime Claims in South China Sea,” Military Times, June 8, 2020; Nguyen Hong Thao,
“South China Sea: US Joins the Battle of Diplomatic Notes,” Diplomat, June 10, 2020.
49 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report [for]
Fiscal Year 2018, Pursuant to Section 1275 of the National Defense Authorization Act for Fiscal Year 2018, pp. 2-3.
50 As quoted in Andreo Calonzo and Glen Carey, “U.S. Increased Sea Patrols to Send Message to China, Defense
Secretary Says,” Bloomberg, November 19, 2019. See also Deutsche Presse-Agentur and Associated Press, “US to
Boost Military Alliance with Philippines as South China Sea Tensions Grow,” South China Sea Morning Post,
November 19, 2019.
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Issues for Congress
Strategy for Competing Strategically with China in SCS and ECS
Overview
A key issue for Congress is whether the Trump Administration’s strategy for competing
strategically with China in the SCS and ECS is appropriate and correctly resourced, and whether
Congress should approve, reject, or modify the strategy, the level of resources for implementing
it, or both. Decisions that Congress makes on these issues could substantially affect U.S.
strategic, political, and economic interests in the Indo-Pacific region and elsewhere.
As noted earlier, competing strategically with China in the SCS and ECS forms an element of the
Trump Administration’s more confrontational overall approach toward China and its efforts for
promoting the FOIP construct. It is possible, however, for an observer to support a more
confrontational approach toward China and the FOIP construct but nevertheless conclude that the
United States should not compete strategically with China in the SCS and ECS, or that the Trump
Administration’s strategy for doing so is not appropriate or correctly resourced. Conversely, it is
possible for an observer to disagree with the Trump Administration’s overall approach toward
China or the FOIP construct, but nevertheless conclude that the United States should compete
strategically with China in the SCS and ECS, and that the Trump Administration’s strategy for
doing so is appropriate and correctly resourced. Whether to compete strategically with China in
the SCS and ECS, and if so how, is a choice for U.S. policymakers to make, based on an
assessment of the potential benefits and costs of engaging in such a competition in the context of
overall U.S. policy toward China,51 U.S. policy toward the Indo-Pacific,52 and U.S. foreign policy
in general.
Potential U.S. Goals in a Strategic Competition
General Goals
For observers who conclude that the United States should compete strategically with China in the
SCS and ECS, potential general U.S. goals for such a competition include but are not necessarily
limited to the following, which are not listed in any particular order and are not mutually
exclusive:
 fulfilling U.S. security commitments in the Western Pacific, including treaty
commitments to Japan and the Philippines;
 maintaining and enhancing the U.S.-led security architecture in the Western
Pacific, including U.S. security relationships with treaty allies and partner states;
 maintaining a regional balance of power favorable to the United States and its
allies and partners;

51 For more on overall U.S.-China relations, see CRS In Focus IF10119, U.S.-China Relations, by Susan V. Lawrence,
Michael F. Martin, and Andres B. Schwarzenberg, and CRS Report R41108, U.S.-China Relations: An Overview of
Policy Issues, by Susan V. Lawrence.
52 For more on U.S. policy toward the Indo-Pacific, see CRS Report R45396, The Trump Administration’s “Free and
Open Indo-Pacific”: Issues for Congress, coordinated by Bruce Vaughn; CRS In Focus IF11047, The Asia Pacific:
Challenges and Opportunities for U.S. Policy, by Emma Chanlett-Avery et al.
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 defending the principle of peaceful resolution of disputes, under which 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 “might-makes-right” approach to
international affairs;
 defending the principle of freedom of the 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;
 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; and
 pursing these goals as part of a larger U.S. strategy for competing strategically
and managing relations with China.
Specific Goals
For observers who conclude that the United States should compete strategically with China in the
SCS and ECS, potential specific U.S. goals for such a competition include but are not necessarily
limited to the following, which are not listed in any particular order and are not mutually
exclusive:
 dissuading China from
 carrying out additional base-construction activities in the SCS,
 moving additional military personnel, equipment, and supplies to bases at
sites that it occupies in the SCS,53
 initiating island-building or base-construction activities at Scarborough Shoal
in the SCS,
 declaring straight baselines around land features it claims in the SCS,54 or
 declaring an air defense identification zone (ADIZ) over the SCS;55 and
 encouraging China to
 reduce or end operations by its maritime forces at the Senkaku Islands in the
ECS,
 halt actions intended to put pressure against Philippine-occupied sites in the
Spratly Islands,

53 A June 20, 2019, press report states that “China has deployed at least four J-10 fighter jets to the contested Woody
Island in the South China Sea, the first known deployment of fighter jets there since 2017.” (Brad Lendon, “South
China Sea: Image Shows Chinese Fighter Jets Deployed to Contested Island,” CNN, June 20, 2019.)
54 For a discussion regarding the possibility of China declaring straight baselines around land features it claims in the
SCS, see “Reading Between the Lines: The Next Spratly Legal Dispute,” Asia Maritime Transparency Initiative
(AMTI) (Center for Strategic and International Studies [CSIS]), March 21, 2019.
55 For more on the possibility of China declaring an ADIZ over the SCS, see, for example, Minnie Chan, “Beijing’s
Plans for South China Sea Air Defence Identification Zone Cover Pratas, Paracel and Spratly Islands, PLA Source
Says,” South China Morning Post, May 31, 2020; Ben Werner, “New Air Bases, Baby Cabbage Key to Chinese Long-
Term Claims in South China Sea,” USNI News, June 3, 2020; “China’s Next Move in the South China Sea,”
Economist, June 18, 2020.
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 encouraging China to halt actions intended to put pressure against the small
Philippine military presence at Second Thomas Shoal in the Spratly Islands
(or against any other Philippine-occupied sites in the Spratly Islands);
 adopt the U.S./Western definition regarding freedom of the seas, including
the freedom of U.S. and other non-Chinese military vessels to operate freely
in China’s EEZ; and
 accept and abide by the July 2016 tribunal award in the SCS arbitration case
involving the Philippines and China (see Appendix D).
Some Additional Considerations Regarding Strategic Competition
Competing with China’s Approach in the SCS and ECS
As stated earlier, China’s approach to the maritime disputes in the SCS and ECS, and to
strengthening its position over time in the SCS, can be characterized in general as follows:
 China appears to have identified the assertion and defense of its maritime
territorial claims in the SCS and ECS, and the strengthening of its position in the
SCS, as important national goals.
 To achieve these goals, China appears to be employing an integrated, whole-of-
society strategy that includes diplomatic, informational, economic, military,
paramilitary/law enforcement, and civilian elements.
 In implementing this integrated strategy, China appears to be persistent, patient,
tactically flexible, willing to expend significant resources, and willing to absorb
at least some amount of reputational and other costs that other countries might
seek to impose on China in response to China’s actions.
The above points raise a possible question as to how likely a U.S. strategy for competing
strategically with China in the SCS and ECS might be to achieve its goals if that strategy were
one or more of the following:
 one-dimensional rather than multidimensional or whole-of-government;
 halting or intermittent rather than persistent;
 insufficiently resourced; or
 reliant on imposed costs that are not commensurate with the importance that
China appears to have assigned to achieving its goals in the region.
Aligning Actions with Goals
In terms of identifying specific actions for a U.S. strategy for competing strategically with China
in the SCS and ECS, a key element would be to have a clear understanding of which actions are
intended to support which U.S. goals, and to maintain an alignment of actions with policy goals.
For example, U.S. FON operations (FONOPs), which often feature prominently in discussions of
actual or potential U.S. actions, can directly support a general goal of defending the principle of
freedom of the seas, but might support other goals only indirectly, marginally, or not at all.56 A

56 For discussions bearing on this issue, see, for example, Caitlin Doornbos, “Freedom-of-Navigation Ops Will Not
Dent Beijing’s South China Sea Claims, Experts Say,” Stars and Stripes, April 4, 2019; James Holmes, “Are Freedom
of Navigation Operations in East Asia Enough?” National Interest, February 23, 2019; Zack Cooper and Gregory
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summary of U.S. actions and how they align with U.S. goals might produce a U.S. version of the
summary of China’s apparent goals and supporting actions shown in Table 1.
Cost-Imposing Actions
Cost-imposing actions are actions intended to impose political/reputational, institutional,
economic, or other costs on China for conducting certain activities in the ECS and SCS, with the
aim of persuading China to stop or reverse those activities. Such cost-imposing actions need not
be limited to the SCS and ECS. 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 moving to suspend China’s observer status on the Arctic
Council.57 Expanding the potential scope of cost-imposing actions to regions beyond the Western
Pacific might 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 might
also, 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.
Contributions from Allies and Partners
Another factor that policymakers may consider is the potential contribution that could be made to
a U.S. strategy for competing strategically with China in the SCE and ECS by allies such as
Japan, the Philippines, Australia, the UK, and France, as well as potential or emerging partner
countries such as Vietnam, Indonesia, and India. Most or all of the countries just mentioned have
taken steps of one kind or another in response to China’s actions in the SCS and ECS.58

Poling, “America’s Freedom of Navigation Operations Are Lost at Sea, Far Wider Measures Are Needed to Challenge
Beijing’s Maritime Aggression,” Foreign Policy, January 8, 2019.
57 For more on the Arctic Council, see CRS Report R41153, Changes in the Arctic: Background and Issues for
Congress, coordinated by Ronald O'Rourke. In a May 6, 2019, speech about the Arctic in Finland, Secretary of State
Michael Pompeo stated that “China has observer status in the Arctic Council, but that status is contingent upon its
respect for the sovereign rights of Arctic states.” (State Department, “Looking North: Sharpening America’s Arctic
Focus,” Remarks, Michael R. Pompeo, Secretary of State, Rovaniemi, Finland, May 6, 2019, accessed August 20,
2019, at https://www.state.gov/looking-north-sharpening-americas-arctic-focus/.)
58 See, for example, David Hutt, “Vietnam may soon sue China on South China Sea,” Asia Times, May 7, 2020;
Richard Heydarian, “ASEAN Members Start Standing Up to China’s Maritime Aggression,” Nikkei Asian Review,
February 3, 2020. Regarding recent actions by Indonesia specifically, see, for example, Niharika Mandhana, “In South
China Sea Confrontation, Indonesia Resists China—Cautiously,” Wall Street Journal, January 17, 2020; Arys Aditya
and Harry Suhartono, “U.S., Japan May Invest in Indonesia Islands Near South Chinas Sea,” Bloomberg, January 17,
2020; Ian Storey, “What Can Indonesia Do in Its Stand-off with China over the Natunas?” Straits Times, January 10,
2020; Prashanth Parameswaran, “Deterrence and South China Sea Strategy: What Do the Latest China-Indonesia
Natuna Tensions Tell Us?” Diplomat, January 8, 2020. Regarding actions by Malaysia specifically, see, for example,
Philip Bowring, “Potent New Challenge to Beijing’s Nine-Dash Line,” Asia Sentinel, January 8, 2020; Ted Regencia,
“Malaysia FM: China’s ‘Nine-Dash Line’ Claim ‘Ridiculous,’” Al Jazerra, December 21, 2019; Joseph Sipalan, Liz
Lee, Vincent Lee, and Gabriel Crossley, “Beijing Censures Malaysia Over Fresh South China Sea Claim,” Reuters,
December 17, 2019.
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For U.S. policymakers, one key question is how effective those steps by allies and partner
countries have been, whether those steps could be strengthened, and whether they should be
undertaken independent of or in coordination with the United States. A second key question
concerns the kinds of actions that Philippine president Rodrigo Duterte might be willing to take,
given his largely nonconfrontational policy toward China regarding the SCS, and what
implications Philippine reluctance to take certain actions may have for limiting or reducing the
potential effectiveness of U.S. options for responding to China’s actions in the SCS.59
Trump Administration’s Strategy for Competing Strategically
Overview
The Trump Administration’s strategy for competing strategically with China in the SCS and ECS
includes but is not necessarily limited to the following:
 criticizing China’s actions in the SCS, and reaffirming the U.S. position on issues
relating to the SCS and ECS, on a recurring basis;
 conducting naval presence and FON operations in the SCS and Taiwan Strait
transits with U.S. Navy ships and (more recently) U.S. Coast Guard cutters;
 conducting overflight operations in the SCS and ECS with U.S. Air Force
bombers;60
 bolstering U.S. military presence and operations in the Indo-Pacific region in
general, and developing new U.S. military concepts of operations for countering
Chinese military forces in the Indo-Pacific region.61

59 See, for example, Richard Javad Heydarian, “China’s Sea Moves Drive US, Philippines Back Together,” Asia Times,
June 16, 2020; Ben Werner, “Philippines Freezes Pull-Out From Visiting U.S. Forces Agreement,” USNI News, June 8,
2020; Richard Javad Heydarian, “How Duterte Turned the Philippines Into China’s New Play Thing,” National
Interest, February 23, 2020; Meaghan Tobin, “Ending Philippines-US Military Pact Will Affect South China Sea
Disputes: Analysts,”, February 16, 2020; Hal Brands, “A Filipino Battleground in China-U.S. Cool War,” Japan Times,
September 23, 2019; Raissa Robles, “Duterte’s South China Sea U-Turn: Illegal Climbdown, or Clever Gambit for
Oil?” South China Morning Post, September 11, 2019; Eimor Santos, “Experts Warn PH vs. Siding with China on
UNCLOS Revision,” CNN, September 6, 2019; Richard Heydarian, “How Rodrigo Duterte’s Latest Beijing Visit
Marks a Crossroads for China, the Philippines and Asia,” South China Morning Post, September 1, 2019; Richard
Javad Heydarian, “Duterte’s Game in Beijing,” Asia Maritime Transparency Initiative, August 29, 2019; Andreo
Calonzo and Claire Jiao, “Philippines Prefers China Loans Over U.S. ‘Strategic Confusion’ in South China Sea,”
Bloomberg, May 20, 2019; Ana P. Santos and David Pierson, “Duterte Heeds to Pressure to Confront China as
Midterms Approach in the Philippines,” Los Angeles Times, April 15, 2019; Michael Mazza, “US-Philippine Defense
Tensions Weaken Regional Security,” Nikkei Asian Review, March 22, 2019; Prashanth Parameswaran, “China’s
Creeping South China Sea Challenge in the Spotlight With New Facility,” Diplomat, February 7, 2019. See also CRS
In Focus IF10250, The Philippines, by Thomas Lum and Ben Dolven; Richard Javad Heydarian, “US, Philippines
Tacitly Realign Against China,” Asia Times, October 11, 2018; Richard Javad Heydarian, “US, Philippines Floating
Back Together Again,” Asia Times, September 6, 2018.
60 See, for example, Caitlin Doornbos, “Air Force sends pair of B-1B bombers on mission over South China Sea,” Stars
and Stripes, May 27, 2020; Kristin Huang, “US-China Tensions in South China Sea Fuelled by Increase in Military
Operations,” South China Morning Post, May 10, 2020; Dzirhan Mahadzir, “Air Force Keeping Up Presence
Operations Over South China Sea,” USNI News, December 11, 2019; Liu Zhen, “US Warplanes on Beijing’s Radar in
South China Sea, American Air Force Chiefs Say,” South China Morning Post, December 9, 2019.
61 For a brief discussion of these new concepts of operations, see CRS Report R43838, Renewed Great Power
Competition: Implications for Defense—Issues for Congress, by Ronald O'Rourke.
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 maintaining and strengthening diplomatic ties and security cooperation with, and
providing maritime-related security assistance to, countries in the SCS region;
and
 encouraging allied and partner states to do more individually and in coordination
with one another to defend their interests in the SCS region.62
U.S. actions to provide maritime-related security assistance to countries in the region are being
carried out to a large degree under the Indo-Pacific Maritime Security Initiative (IP MSI), an
initiative (previously named the Southeast Asian MSI) that was originally announced by the
Obama Administration in May 201563 and subsequently legislated by Congress64 to provide,
initially, $425 million in maritime security assistance to those four countries over a five-year
period. In addition to strengthening security cooperation with U.S. allies in the region, the United
States has taken actions to increase U.S. defense and intelligence cooperation with Vietnam and
Indonesia.65
Recent Specific Actions
Recent specific actions taken by the Trump Administration include but are not necessarily limited
to the following:
 As an apparent cost-imposing measure, DOD announced on May 23, 2018, that it
was disinviting China from the 2018 RIMPAC (Rim of the Pacific) exercise.66

62 See, for example, Eileen Ng, “US Official Urges ASEAN to Stand Up to Chine in Sea Row,” Associated Press,
October 31, 2019.
63 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. See also Megan Eckstein, “The
Philippines at Forefront of New Pentagon Maritime Security Initiative,” USNI News, April 18, 2016 (updated April 17,
2016).
64 Section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (S. 1356/P.L. 114-92 of November 25,
2015; 10 U.S.C. 2282 note), as amended by Section 1289 of the National Defense Authorization Act for Fiscal Year
2017 (S. 2943/P.L. 114-328 of December 23, 2016).
65 See, for example, Robert Burns, “Mattis Pushes Closer Ties to Vietnam Amid Tension with China,” Associated
Press, October 14, 2018; Bill Gertz, “Trump Courts Vietnam to Ward Off Beijing in South China Sea,” Asia Times,
November 14, 2017; William Gallo, “Mattis in Southeast Asia, Amid Fresh US Focus on China,” VOA News, January
22, 2018; Richard Javad Heydarian, “Mattis Signals Harder Line in South China Sea,” Asia Times, January 25, 2018;
Patrick M. Cronin and Marvin C. Ott, “Deepening the US-Indonesian Strategic Partnership,” The Diplomat, February
17, 2018; Nike Ching, “US, Vietnam to Cooperate on Freedom of Navigation in Disputed South China Sea,” VOA
News, July 9, 2018.
66 RIMPAC is a U.S.-led, multilateral naval exercise in the Pacific involving naval forces from more than two dozen
countries that is held every two years. At DOD’s invitation, China participated in the 2014 and 2016 RIMPAC
exercises. DOD had invited China to participate in the 2018 RIMPAC exercise, and China had accepted that invitation.
DOD’s statement regarding the withdrawal of the invitation was reprinted in Megan Eckstein, “China Disinvited from
Participating in 2018 RIMPAC Exercise,” USNI News, May 23, 2018. See also Gordon Lubold and Jeremy Page, “U.S.
Retracts Invitation to China to Participate in Military Exercise,” Wall Street Journal,” Wall Street Journal, May 23,
2018. See also Helene Cooper, “U.S. Disinvites China From Military Exercise Amid Rising Tensions,” New York
Times, May 23, 2018; Missy Ryan, “Pentagon Disinvites China from Major Naval Exercise over South China Sea
Buildup,” Washington Post, May 23, 2018; James Stavridis, “U.S. Was Right to Give China’s navy the Boot,”
Bloomberg, August 2, 2018.
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 In November 2018, national security adviser John Bolton said the U.S. would
oppose any agreements between China and other claimants to the South China
Sea that limit free passage to international shipping.67
 In January 2019, the then-U.S. Chief of Naval Operations, Admiral John
Richardson, reportedly warned his Chinese counterpart that the U.S. Navy would
treat China’s coast guard cutters and maritime militia vessels as combatants and
respond to provocations by them in the same way as it would respond to
provocations by Chinese navy ships.68
 On March 1, 2019, Secretary of State Michael Pompeo stated, “As the South
China Sea is part of the Pacific, any armed attack on Philippine forces, aircraft,
or public vessels in the South China Sea will trigger mutual defense obligations
under Article 4 of our Mutual Defense Treaty [with the Philippines].”69 (For more
on this treaty, see Appendix B.)
A May 3, 2020, press report stated:
Washington hopes to capitalise on anger over persistent Chinese aggression in the South
China Sea to rally rival claimants against Beijing.
China has continued to assert its dominance of the strategically important waters during
the coronavirus pandemic even as other littoral states have been focused on dealing with
the health crisis.
“Their harassment has not served them well. And it has helped start some conversations
that we are having now about how to deal with China,” said a US diplomat in south-east
Asia.70

67 Jake Maxwell Watts, “Bolton Warns China Against Limiting Free Passage in South China Sea,” Wall Street Journal,
November 13, 2018.
68 See Demetri Sevastopulo and Kathrin Hille, “US Warns China on Aggressive Acts by Fishing Boats and Coast
Guard; Navy Chief Says Washington Will Use Military Rules of Engagement to Curb Provocative Behavior,” Financial
Times, April 28, 2019. See also Shirley Tay, “US Reportedly Warns China Over Hostile Non-Naval Vessels in South
China Sea,” CNBC, April 29, 2019; Ryan Pickrell, “China’s South China Sea Strategy Takes a Hit as the US Navy
Threatens to Get Tough on Beijing’s Sea Forces,” Business Insider, April 29, 2019; Tyler Durden, “‘Warning Shot
Across The Bow:’ US Warns China On Aggressive Acts By Maritime Militia,” Zero Hedge, April 29, 2019; Ankit
Panda, “The US Navy’s Shifting View of China’s Coast Guard and ‘Maritime Militia,’” Diplomat, April 30, 2019;
Ryan Pickrell, “It Looks Like the US Has Been Quietly Lowering the Threshold for Conflict in the South China Sea,”
Business Insider, June 19, 2019.
69 State Department, Remarks With Philippine Foreign Secretary Teodoro Locsin, Jr., Remarks [by] Michael R.
Pompeo, Secretary of State, March 1, 2019, accessed August 21, 2019 at https://www.state.gov/remarks-with-
philippine-foreign-secretary-teodoro-locsin-jr/. See also Regine Cabato and Shibani Mahtani, “Pompeo Promises
Intervention If Philippines Is Attacked in South China Sea Amid Rising Chinese Militarization,” Washington Post,
February 28, 2019; Claire Jiao and Nick Wadhams, “We Have Your Back in South China Sea, U.S. Assures
Philippines,” Bloomberg, February 28 (updated March 1), 2019; Jake Maxwell Watts and Michael R. Gordon,
“Pompeo Pledges to Defend Philippine Forces in South China Sea, Philippines Shelves Planned Review of Military
Alliance After U.S. Assurances,” Wall Street Journal, March 1, 2019; Jim Gomez, “Pompeo: US to Make Sure China
Can’t Blockade South China Sea,” Associated Press, March 1, 2019; Karen Lema and Neil Jerome Morales, “Pompeo
Assures Philippines of U.S. Protection in Event of Sea Conflict, Reuters, March 1, 2019; Raissa Robles, “US Promises
to Defend the Philippines from ‘Armed Attack’ in South China Sea, as Manila Mulls Review of Defence Ttreaty,”
South China Morning Post, March 1, 2019; Raul Dancel, “US Will Defend Philippines in South China Sea: Pompeo,”
Straits Times, March 2, 2019; Ankit Panda, “In Philippines, Pompeo Offers Major Alliance Assurance on South China
Sea,” Diplomat, March 4, 2019; Mark Nevitt, “The US-Philippines Defense Treaty and the Pompeo Doctrine on South
China Sea,” Just Security, March 11, 2019; Zack Cooper, “The U.S. Quietly Made a Big Splash about the South China
Sea; Mike Pompeo Just Reaffirmed Washington Has Manila’s back,” Washington Post, March 19, 2019.
70 Kathrin Hille and John Reed, “US Looks to Exploit Anger over Beijing’s South China Sea Ambitions,” Financial
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Reported FON Operations and Taiwan Strait Transits
In addition to conducting FON operations in the Spratly and Paracel islands, U.S. Navy ships
(and more recently at least one U.S. Coast Guard cutter) have steamed through the Taiwan Strait
on a recurring basis.71 As mentioned earlier, FON operations can directly support a general U.S.
goal of defending principle of freedom of the seas, but might support other U.S. goals only
indirectly, marginally, or not at all.72
Table 2 shows reported U.S. Navy FON operations during the Trump Administration; Table 3
shows reported annual numbers of U.S. Navy FON operations in the SCS and Taiwan Strait
transits since 2014. Note that the data in these two tables do not entirely agree: Table 2 shows
four reported FON operations in the SCS in 2017, while Table 3 shows six for that year, and
Table 2 shows eight reported FON operations in the SCS in 2019, while Table 3 shows seven for
that year (perhaps because the data for Table 3 treat the actions of November 20 and 21, 2019, as
being part of a single FON operation rather than two separate FON operations).
In general, China has objected each U.S. Navy FON operation in the SCS and has stated that it
sent Chinese Navy ships and/or aircraft to warn the U.S. Navy ships to leave the areas in
question. The FON operation conducted on September 30, 2018, led to an intense encounter,
discussed elsewhere in this report, between the U.S. Navy ship that conducted the operation (the
USS Decatur [DDG-73]) and the Chinese Navy ship that was sent to warn it off.73

Times, May 3, 2020.
71 See, for example, Joseph Ditzler, “Navy Sends Another Guided-Missile Destroyer Through Taiwan Strait,” Stars and
Stripes, June 8, 2020; Teddy Ng, “US Warship Sails Through Taiwan Strait on Tiananmen Square Anniversary,” South
China Morning Post, June 5, 2020; Geoff Ziezulewicz, “U.S. Warship Steams Through Taiwan Strait,” Navy Times,
June 5, 2020; Ben Blanchard, “U.S. Warship Sails Through Taiwan Strait on Tiananmen Anniversary,” Reuters, June
4, 2020; Ben Werner, “USS Russell Transits Taiwan Strait,” USNI News, June 4 (updated June 12), 2020; Ben Werner,
“USS McCampbell Transits Taiwan Strait Ahead of Taiwanese Presidential Inauguration,” USNI News, May 14, 2020;
Ben Blanchard and Gabriel Crossley, “U.S. Sails Warship Near Taiwan a Week Ahead of Presidential Inauguration,”
Reuters, May 13, 2020; Niharika Mandhana, “U.S. Warships Support Malaysia Against China Pressure in South China
Sea,” Wall Street Journal, May 13, 2020; Staff writer, “US Warship Transits Strait for Second Time This month,”
Taipei Times, April 25, 2020; Ben Blanchard and Idrees Ali, “U.S. Warship Sails Through Taiwan Strait, Second Time
in a Month,” Reuters, April 23, 2020; Ben Blanchard, “U.S. Playing Dangerous Game, China Says, After Warship Sails
Through Taiwan Strait,” Reuters, March 25, 2020; Iain Marlow and Adela Lin, “U.S. Warship Sails Taiwan Strait
After Trade Deal, Election,” Bloomberg, January 17, 2020; Ben Blanchard, “U.S. Warship transits Taiwan Strait Less
Than Week After Election,” Reuters, January 16, 2020; Caitlin Doornbos, “Navy Sends Guided-Missile Cruiser
Through Taiwan Strait in Eighth Transit There This Year,” Stars and Stripes, November 13, 2019; Lucas Tomlinson,
“US Warship Sails Through Taiwan Strait in Message to China,” Fox News, November 12, 2019.
72 For a discussion bearing on this issue, see, for example, Zack Cooper and Gregory Poling, “America’s Freedom of
Navigation Operations Are Lost at Sea, Far Wider Measures Are Needed to Challenge Beijing’s Maritime Aggression,”
Foreign Policy, January 8, 2019. See also John Grady, “U.S. Indo-Pacific Diplomacy Efforts Hinge On FONOPS,
Humanitarian Missions,” USNI News, December 4, 2019.
73 For the discussion of this tense encounter, see the paragraph ending in footnote 98 and the citations at that footnote.
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Table 2. Reported FON Operations in SCS During Trump Administration
Details shown are based on press reports
Date
Location in SCS
U.S. Navy Ship
Notes
May 25, 2017
Mischief Reef in Spratly Islands
Dewey (DDG-105)

July 2, 2017
Triton Island in Paracel Islands
Stethem (DDG-63)

August 10, 2017
Mischief Reef in Spratly Islands
John S. McCain (DDG-56)

October 10, 2017
Paracel Islands
Chaffee (DDG-90)

January 17, 2018
Mischeif Reef in Spratly Islands
Hopper (DDG-70)

March 23, 2018
Mischeif Reef in Spratly Islands
Mustin (DDG-89)

May 27, 2018
Tree, Lincoln, Triton, and Woody
Antietam (CG-54) and
The U.S. Navy reportedly considers
islands in Paracel Islands
Higgins (DDG-76)
that the Chinese warships sent to
warn off the U.S. Navy ships
maneuvered in a “safe but
unprofessional” manner.
September 30, 2018 Gaven and Johnson Reefs in Spratly
Decatur (DDG-73)
This operation led to a tense
Islands
encounter between the Decatur and a
Chinese destroyer.
November 26, 2018 Paracel Islands
Chancellorsville (CG-62)

January 7, 2019
Tree, Lincoln, and Woody islands in
McCampbell (DDG-85)

Paracel Islands
February 11, 2019
Mischief Reef in Spratly Islands
Spruance (DDG-111) and

Preble (DDG-88)
May 6, 2019
Gaven and Johnson Reefs in Spratly
Preble (DDG-88) and Chung
Islands
Hoon (DDG-93)
May 19, 2019
Scarborough Shoal in Spratly Islands
Preble (DDG-88)

August 28, 2019
Fiery Cross Reef and Mischief Reef in
Wayne E. Meyer (DDG-108)

Spratly Islands
September 13, 2019 Paracel Islands
Wayne E. Meyer (DDG-108)

November 20, 2019 Mischief Reef in Spratly Islands
Gabrielle Giffords (LCS-10)

November 21, 2019 Paracel Islands
Wayne E. Meyer (DDG-108)

January 25, 2020
Spratly Islands
Montgomery (LCS-8)

March 10, 2020
Paracel Islands
McCampbell (DDG-85)

April 28, 2020
Paracel Islands
Barry (DDG-52)

April 29, 2020
Gaven Reef in Spratly Islands
Bunker Hill (CG-52)

May 28, 2020
Woody Island and Pyramid Rock in
Mustin (DDG-89)

Paracel Islands
Source: Table prepared by CRS based on press reports about each operation.
Notes: Reported dates may vary by one day due to the difference in time zones between the United States and
the SCS. Regarding the entry for March 10, 2020, a press report on China’s state-control ed media states: “Since
late January, US warships have travelled within 12 nautical miles of the South China Sea islands in Chinese
territory five separate times. Three instances happened close to one another on March 10, 13, and 15.” (Cheng
Hanping, “US Steps Up Maritime Provocations in Attempt to Distract China’s COVID-19 Fight,” Global Times,
March 22, 2020.)
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Table 3. Reported Numbers of U.S. Navy SCS FONOPs and Taiwan Strait Transits
Year
SCS FONOPs
Taiwan Strait transits
2014
0
n/a
2015
2
n/a
2016
3
12
2017
6
5
2018
5
3
2019
7
9
Source: For SCS FONOPs: U.S. Navy information as reported in David B. Larter, “In Challenging China’s
Claims in the South China Sea, the US Navy Is Getting More Assertive,” Defense News, February 5, 2020; John
Power, “US Freedom of Navigation Patrols in South China Sea Hit Record High in 2019,” South China Morning
Post, February 5, 2020. For Taiwan Strait transits: David B. Larter, “In Challenging China’s Claims in the
South China Sea, the US Navy Is Getting More Assertive,” Defense News, February 5, 2020.
A May 20, 2020, press report stated:
The Pentagon said the US military has had "unsafe" encounters with the Chinese armed
forces in the South China Sea during the COVID-19 pandemic, which is also a source of
deepening tension between the two countries.
There have been "at least nine" concerning incidents involving Chinese fighter jets and US
aircraft in the skies above the contested waterway since mid-March, Reed Werner, the
deputy assistant secretary of defense for Southeast Asia, told Fox News on Tuesday, adding
that China continues to engage in "risky and escalatory behavior."
A defense official told Insider that some incidents were considered unsafe, though the
specific details behind the incidents are unclear.
Werner also told Fox News that a Chinese escort ship sailing with a Chinese aircraft-carrier
group maneuvered in an "unsafe and unprofessional way" near the US Navy guided-missile
destroyer USS Mustin in the South China Sea last month.
Chinese media reports indicated that a Chinese navy flotilla led by the Liaoning was
conducting "mock battles" in the South China Sea in April.
Werner told Fox that the Pentagon found "the current trend line very worrisome," adding
that the US has lodged several formal and informal complaints in response to recent
incidents.
"We've made démarches," he said, adding that this is a regular occurrence.74
Assessing the Trump Administration’s Strategy
In assessing whether the Trump Administration’s strategy for competing strategically with China
in the SCS and ECS is appropriate and correctly resourced, potential questions that Congress may
consider include but are not necessarily limited to the following:

74 Ryan Pickrell, “Pentagon Says China’s Military Is Challenging the US with ‘Risky’ Run-ins in the South China Sea
During the Pandemic,” Business Insider, May 20, 2020. See also Richard Javad Heydarian, “US Pushes Back on China
in South China Sea,” Asia Times, May 18, 2020; Philip Heijmans, “U.S.-China Confrontation Risk Is Highest in the
South China Sea,” Bloomberg, May 27, 2020.

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 Has the Administration correctly assessed China’s approach to the maritime
disputes in the SCS and ECS, and to strengthening its position over time in the
SCS?
 Has the Administration correctly identified the U.S. goals to be pursued in
competing strategically with China in the SCS and ECS? If not, how should the
list of U.S. goals be modified?
 Are the Administration’s actions correctly aligned with its goals? If different
goals should be pursued, what actions should be taken to support them?
 Has the Administration correctly incorporated cost-imposing strategies and
potential contributions from allies and partners into its strategy? If not, how
should the strategy be modified?
 Is the Administration requesting an appropriate level of resources for
implementing its strategy? If not, how should the level of resources be modified?
 How does the Administration’s strategy for competing strategically in the SCS
and ECS compare with China’s approach to the maritime disputes in the SCS and
ECS, and to strengthening its position over time in the SCS?
Some observers have proposed modifying the Trump Administration’s strategy for competing
strategically with China in the SCS and ECS. In many (though not all) cases, the proposed
modifications involve taking actions that these observers believe would make for a stronger or
more effective U.S. strategy. Appendix I presents a bibliography of some recent writings by
observers recommending various modifications to the Trump Administration’s strategy.
Some observers have questioned whether the Trump Administration is adequately resourcing its
strategy for competing strategically with China in the SCS and ECS, particularly in terms of
funding for maritime-related security assistance for countries in the region. Funding levels for
security assistance to countries in the SCS, they argue, are only a small fraction of funding levels
for U.S. security assistance recipients in other regions, such as the Middle East. On observer, for
example, stated in 2018 that
today there is a large and persistent gap between the level of importance the U.S.
government has attached to the Indo-Pacific and what annual appropriations continue to
prioritize at the State Department and Pentagon. A bipartisan consensus has emerged to the
extent that major foreign policy speeches and strategy documents now conclude that the
Indo-Pacific is the central organizing principle for the U.S. government, but you would not
know it by reading the last two administrations’ budget submissions. If budgets are truly
policy, the administration and Congress have a long way to go….
Despite the growing acceptance that the Indo-Pacific and U.S.-Chinese competition
represents America’s most pressing long-term challenge, there remains a stark contrast
between how the administration and Congress continue to budget for Asian security
matters compared to other international issues. This is not to argue that other priorities,
such as European Command and countering Russian in Ukraine, are not important. They
are and deserve budgetary support. Some will argue that this budgetary emphasis
demonstrates a bias towards those theaters at the expense of Asia. There may be some truth
to this. Understanding and responding to the Russia threat as well as the terrorism challenge
remains a part of America’s national security muscle memory, where support can quickly
be galvanized and resources persistently applied. Significant work still needs to be done to
translate the emerging understanding of America’s long-term position in the Indo-Pacific
by senior leaders and congressional staff into actual shifts in budgetary priority.
To be fair, in recent years Congress, with administration support, has taken important
actions in the theater, including the creation and funding of the Maritime Security Initiative
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in 2015, funding of the Palau Compact in 2017, resourcing some of Indo-Pacific
Command’s unfunded requirements in 2018, devoting resources for dioxin remediation in
Vietnam, and reorganizing and raising the lending limit for the Overseas Private
Investment Corporation as part of the BUILD Act. But the issue remains that the scale of
resource commitment to the region continues to fall short of the sizable objectives the U.S.
government has set for itself….
Continuing to give other functional issues and regional challenges budgetary priority will
not bring about the shift in national foreign policy emphasis that the United States has set
for itself. As Washington’s mental map of the Indo-Pacific matures, the next step in
implementing this new consensus on China will fall to the administration, elected officials,
and senior congressional staff to prioritize resource levels for the region commensurate
with the great power competition we find ourselves in.75
Risk of United States Being Drawn into a Crisis or Conflict
Some observers remain concerned that 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.
Regarding this issue, 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 B) 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 B) 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?76

75 Eric Sayers, “Assessing America’s Indo-Pacific Budget Shortfall,” War on the Rocks, November 15, 2018.
76 As mentioned earlier, on March 1, 2019, Secretary of State Michael Pompeo stated that “As the South China Sea is
part of the Pacific, any armed attack on Philippine forces, aircraft, or public vessels in the South China Sea will trigger
mutual defense obligations under Article 4 of our Mutual Defense Treaty [with the Philippines].” For citations, see
footnote 69. For articles bearing more generally on this issue, see, for example, Jason Gutierrez, “Philippine Official,
Fearing War With China, Seeks Review of U.S. Treaty,” New York Times, March 5, 2019; Jim Gomez (Associated
Press), “Philippines Frets about War at Sea for US, Navy Times, March 5, 2019; Rigoberto D. Tiglao, “US Will Defend
PH in a South China Sea War? Don’t Bet on It,” Manila Times, March 4, 2019; Richard Javad Heydarian, “U.S.
Ambiguity Is Pushing the Philippines Toward China,” National Interest, February 8, 2019; Richard Heydarian, “How
Washington’s Ambiguity in South China Sea Puts the Philippine-US Alliance at a Crossroads,” South China Morning
Post, January 31, 2019; Gregory Poling and Eric Sayers, “Time to Make Good on the U.S.-Philippine Alliance,” War
on the Rocks, January 21, 2019; Malcolm Cook, “Philippine Alliance Angst,” Interpreter, January 18, 2019; Raissa
Robles, “Philippine Defence Chief Urges Review of US Treaty Amid South China Sea Tensions,” South China
Morning Post, January 17, 2019; Patrick N. Cronin and Richard Javad Heydarian, “This Is How America and the
Philippines Can Upgrade Their Alliance,” National Interest, November 12, 2018; Agence France-Presse, “US Will Be
‘Good Ally’ to Philippines if China Invades, Defence Official Promises,” South China Morning Post,” August 17,
2018.
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 Aside from public statements, what has the United States communicated to China
regarding potential U.S. actions under the two treaties in connection with
maritime territorial disputes in the SCS and ECS?
 Has the United States correctly balanced ambiguity and explicitness in its
communications to various parties regarding potential U.S. actions under the two
defense treaties?
 How do the two treaties affect the behavior of Japan, the Philippines, and China
in managing their territorial disputes? To what extent, for example, would they
help Japan or the Philippines resist potential Chinese attempts to resolve the
disputes through intimidation, or, alternatively, encourage risk-taking or
brinksmanship behavior by Japan or the Philippines in their dealings with China
on the disputes? To what extent do they deter or limit Chinese assertiveness or
aggressiveness in their dealings with Japan the Philippines on the disputes?
 Has the DOD adequately incorporated into its planning crisis and conflict
scenarios arising from maritime territorial disputes in the SCS and ECS that fall
under the terms of the two treaties?
Whether United States Should Ratify UNCLOS
Another issue for Congress—particularly the Senate—is how competing strategically with China
in the SCS and ECS might affect the question of whether the United States should become a party
to the United Nations Convention on the Law of the Sea (UNCLOS).77 UNCLOS 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, 1994.78 In the absence of Senate advice and
consent to adherence, the United States is not a party to UNCLOS or 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.79

77 For additional background information on UNCLOS, see Appendix B.
78 Treaty Document 103-39.
79 See, for example, Andrew Browne, “A Hole in the U.S. Approach to Beijing,” Wall Street Journal, May 20, 2014.
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 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.80
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 EEZs81 shows that UNCLOS does not adequately protect U.S.
interests relating to navigational rights in EEZs; the United States should not help
lock this inadequate description of navigational rights into permanent
international law by becoming a party to the treaty.
 The United States becoming a party to the treaty would do little to help resolve
maritime territorial disputes in the SCS and ECS, in part because China’s
maritime territorial claims, such as those depicted in the map of the nine-dash
line, predate and go well beyond what is allowed under the treaty and appear
rooted in arguments that are outside the treaty.
 The United States can adequately support the ASEAN countries and Japan in
matters relating to maritime territorial disputes in the SCS and ECS in other
ways, without becoming a party to the treaty.
 The United States can continue to defend its positions on navigational rights on
the high seas by citing customary international law, by demonstrating those rights
with U.S. naval deployments (including those conducted under the FON
program), and by having allies and partners defend the U.S. position on the EEZ
issue at meetings of UNCLOS parties.82

80 See, for example, Patricia Kine, “Signing Treaty Would Bolster US Against China, Russia Seapower: Lawmaker,”
Military.com, January 16, 2019.
81 For a discussion of China’s legal justifications for its position on the EEZ issue, see, for example, Peter Dutton,
“Three Disputes and Three Objectives,” Naval War College Review, Autumn 2011: 54-55. See also Isaac B. Kardon,
“The Enabling Role of UNCLOS in PRC Maritime Policy,” Asia Maritime Transparency Initiative (Center for
Strategic & International Studies), September 11, 2015.
82 For an article providing general arguments against the United States becoming a party to UNCLOS, see Ted
Bromund, James Carafano, and Brett Schaefer, “7 Reasons US Should Not Ratify UN Convention on the Law of the
Sea,” Daily Signal, June 2, 2018.
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Legislative Activity in 2019
FY2020 National Defense Authorization Act (H.R. 2500/S. 1790/P.L.
116-92)
House
H.R. 2500 was reported by the House Armed Services Committee (H.Rept. 116-120) on June 19,
2019) and passed by the House, 220-197, on July 12, 2019. Section 1241 of H.R. 2500 as passed
by the House states the following:
SEC. 1241. Modification of Indo-Pacific Maritime Security Initiative.
(a) Types of assistance and training.—Subsection (c)(2)(A) of section 1263 of the National
Defense Authorization Act for Fiscal Year 2016 (10 U.S.C. 2282 note) is amended by
inserting “the law of armed conflict, the rule of law, and” after “respect for”.
(b) Notice to Congress on assistance and training.—Subsection (g)(1) of such section is
amended—
(1) in subparagraph (A), by inserting at the end before the period the following: “, the
specific unit or units whose capacity to engage in activities under a program of assistance
or training to be provided under subsection (a) will be built under the program, and the
amount, type, and purpose of the support to be provided”;
(2) by redesignating subparagraph (F) as subparagraph (J); and
(3) by inserting after subparagraph (E) the following new subparagraphs:
“(F) Information, including the amount, type, and purpose, on assistance and training
provided under subsection (a) during the three preceding fiscal years, if applicable.
“(G) A description of the elements of the theater campaign plan of the geographic
combatant command concerned and the interagency integrated country strategy that will
be advanced by the assistance and training provided under subsection (a).
“(H) A description of whether assistance and training provided under subsection (a) could
be provided pursuant to—
“(i) section 333 of title 10, United States Code, or other security cooperation authorities of
the Department of Defense; or
“(ii) security cooperation authorities of the Department of State.
“(I) An identification of each such authority described in subparagraph (H).”.
(c) Annual monitoring reports.—Such section is amended—
(1) by redesignating subsection (h) as subsection (j); and
(2) by inserting after subsection (g) the following new subsection:
“(h) Annual monitoring reports.—
“(1) IN GENERAL.—Not later than December 31, 2019, and annually thereafter, the
Secretary of Defense shall submit to the appropriate committees of Congress a report
setting forth, for the preceding calendar year, the following:
“(A) Information, by recipient foreign country, on the status of funds allocated for
assistance and training provided under subsection (a), including funds allocated but not yet
obligated or expended.
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“(B) Information, by recipient foreign country, on the delivery and use of assistance and
training provided under subsection (a).
“(C) Information, by recipient foreign country, on the timeliness of delivery of assistance
and training provided under subsection (a) as compared to the timeliness of delivery of
assistance and training previously provided to the foreign country under subsection (a).
“(2) APPROPRIATE COMMITTEES OF CONGRESS DEFINED.—In this subsection,
the term ‘appropriate committees of Congress’ has the meaning given the term in
subsection (g)(2).”.
(d) Limitations.—Such section, as so amended, is further amended by inserting after
subsection (h), as added by subsection (c)(2), the following:
“(i) Limitations.—
“(1) ASSISTANCE OTHERWISE PROHIBITED BY LAW.—The Secretary of Defense
may not use the authority in subsection (a) to provide any type of assistance or training that
is otherwise prohibited by any provision of law.
“(2) PROHIBITION ON ASSISTANCE TO UNITS THAT HAVE COMMITTED
GROSS VIOLATIONS OF HUMAN RIGHTS.—The provision of assistance and training
pursuant to a program under subsection (a) shall be subject to the provisions of section 362
of title 10, United States Code.
“(3) ASSESSMENT, MONITORING, AND EVALUATION OF PROGRAMS AND
ACTIVITIES.—The provision of assistance and training pursuant to a program under
subsection (a) shall be subject to the provisions of section 383 of title 10, United States
Code.”.
(e) Report.—
(1) IN GENERAL.—Not later than January 31, 2020, the Secretary of Defense, with the
concurrence of the Secretary of State, shall submit to the appropriate congressional
committees a report on the implementation of the Indo-Pacific Maritime Security Initiative
under section 1263 of the National Defense Authorization Act for Fiscal Year 2016, as
amended by this section.
(2) MATTERS TO BE INCLUDED.—The report required by paragraph (1) shall include
the following:
(A) Objectives of the Initiative, including—
(i) a discussion of United States security requirements that are satisfied or enhanced under
the Initiative; and
(ii) an assessment of progress toward each such objective and the metrics used to assess
such progress.
(B) A discussion of how the Initiative relates to, complements, or overlaps with other
United States security cooperation and security assistance authorities.
(C) A description of the process and criteria by which the utilization of each such authority
or authorities described in subparagraph (B) is determined.
(D) An assessment, by recipient foreign country, of—
(i) the country’s capabilities relating to maritime security and maritime domain awareness;
(ii) the country’s capability enhancement priorities, including how such priorities relate to
the theater campaign strategy, country plan, and theater campaign plan relating to maritime
security and maritime domain awareness;
(E) A discussion, by recipient foreign country, of—
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(i) priority capabilities that the Department of Defense plans to enhance under the Initiative
and priority capabilities the Department plans to enhance under separate United States
security cooperation and security assistance authorities; and
(ii) the anticipated timeline for assistance and training for each such capability.
(F) Information, by recipient foreign country, on the delivery and use of assistance and
training provided under the Initiative.
(G) Any other matters the Secretary of Defense determines should be included.
(3) FORM.—The report required by paragraph (1) shall be submitted in unclassified form
without any designation relating to dissemination control, but may include a classified
annex.
(4) DEFINITION.—In this section, the term “appropriate congressional committees”
means—
(A) the congressional defense committees; and
(B) the Committee on Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives.
Section 1247 of H.R. 2500 as passed by the House states the following:
SEC. 1247. Modification of annual report on military and security developments involving
the People’s Republic of China.
(a) Annual report.—Subsection (a) of section 1202 of the National Defense Authorization
Act for Fiscal Year 2000 (10 U.S.C. 113 note) is amended by inserting “, in consultation
with the heads of other Federal departments and agencies as appropriate,” after “the
Secretary of Defense”.
(b) Matters to be included.—Subsection (b) of such section is amended by adding at the
end the following:
“(29) Developments relating to the China Coast Guard (in this paragraph referred to as the
‘CCG’), including an assessment of—
“(A) how the change in the CCG’s command structure to report to China’s Central Military
Commission affects the CCG’s status as a law enforcement entity;
“(B) the implications of the CCG’s command structure with respect to the use of the CCG
as a coercive tool in ‘gray zone’ activity in the East China Sea and the South China Sea;
and
“(C) how the change in the CCG’s command structure may affect interactions between the
CCG and the United States Navy.
“(30) An assessment of the nature of Chinese military relations with Russia, including what
strategic objectives China and Russia share and are acting on, and on what objectives they
misalign.
“(31) An assessment of—
“(A) China’s expansion of its surveillance state;
“(B) any correlation of such expansion with its oppression of its citizens and its threat to
United States national security interests around the world; and
“(C) an overview of the extent to which such surveillance corresponds to the overall
respect, or lack thereof, for human rights.”.
(c) Specified congressional committees.—Subsection (c) of such section is amended—
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(1) in paragraph (1), by striking “and the Committee on Foreign Relations” and inserting
“, the Committee on Foreign Relations, and the Select Committee on Intelligence”; and
(2) in paragraph (2), by striking “and the Committee on International Relations” and
inserting “, the Committee on Foreign Affairs, and the Permanent Select Committee on
Intelligence”.
Conference
In the conference report (H.Rept. 116-333 of December 9, 2019) on S. 1790/P.L. 116-92 of
December 20, 2020, Section 1251 states
SEC. 1251. MODIFICATION OF INDO-PACIFIC MARITIME SECURITY
INITIATIVE.
(a) Types of Assistance and Training.—Subsection (c)(2)(A) of section 1263 of the
National Defense Authorization Act for Fiscal Year 2016 (10 U.S.C. 2282 note) is
amended by inserting ``the law of armed conflict, the rule of law, and’’ after ``respect for’’.
(b) Notice to Congress on Assistance and Training.—Subsection (g)(1) of such section is
amended—
(1) in subparagraph (A), by inserting at the end before the period the following: ``, the
specific unit or units whose capacity to engage in activities under a program of assistance
or training to be provided under subsection (a) will be built under the program, and the
amount, type, and purpose of the support to be provided’”;
(2) by redesignating subparagraph (F) as subparagraph (J); and
(3) by inserting after subparagraph (E) the following new subparagraphs:
``(F) Information, including the amount, type, and purpose, on assistance and training
provided under subsection (a) during the three preceding fiscal years, if applicable.
``(G) A description of the elements of the theater campaign plan of the geographic
combatant command concerned and the interagency integrated country strategy that will
be advanced by the assistance and training provided under subsection (a).
``(H) A description of whether assistance and training provided under subsection (a) could
be provided pursuant to—
``(i) section 333 of title 10, United States Code, or other security cooperation authorities
of the Department of Defense; or
``(ii) security cooperation authorities of the Department of State.
`(I) An identification of each such authority described in subparagraph (H).’’.
(c) Annual Monitoring Reports.—Such section is amended—
(1) by redesignating subsection (h) as subsection (j); and
(2) by inserting after subsection (g) the following new subsection:
``(h) Annual Monitoring Reports.—
``(1) In general.—Not later than March 1, 2020, and annually thereafter, the Secretary of
Defense shall submit to the appropriate committees of Congress a report setting forth, for
the preceding calendar year, the following:
``(A) An assessment, by recipient foreign country, of—
``(i) the country’s capabilities relating to maritime security and maritime domain
awareness;
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``(ii) the country’s capability enhancement priorities, including how such priorities relate
to the theater campaign strategy, country plan, and theater campaign plan relating to
maritime security and maritime domain awareness;
``(B) A discussion, by recipient foreign country, of—
``(i) priority capabilities that the Department of Defense plans to enhance under the
authority under subsection (a) and priority capabilities the Department plans to enhance
under separate United States security cooperation and security assistance authorities; and
``(ii) the anticipated timeline for assistance and training for each such capability.
``(C) Information, by recipient foreign country, on the status of funds allocated for
assistance and training provided under subsection (a), including funds allocated but not yet
obligated or expended.
``(D) Information, by recipient foreign country, on the delivery and use of assistance and
training provided under subsection (a).
``(E) Information, by recipient foreign country, on the timeliness of the provision of
assistance and training under subsection (a) as compared to the timeliness of the provision
of assistance and training previously provided to the foreign country under subsection (a).
``(F) A description of the reasons the Department of Defense chose to utilize the authority
for assistance and training under subsection (a) in the preceding calendar year.
``(G) An explanation of any impediments to timely obligation or expenditure of funds
allocated for assistance and training under subsection (a) or any significant delay in the
delivery of such assistance and training.
``(2) Appropriate committees of congress defined.—In this subsection, the term
`appropriate committees of Congress’ has the meaning given the term in subsection
(g)(2).’’.
(d) Limitation.—Such section, as so amended, is further amended by inserting after
subsection (h), as added by subsection (c)(2), the following:
``(i) Limitation.—The provision of assistance and training pursuant to a program under
subsection (a) shall be subject to the provisions of section 383 of title 10, United States
Code.’’.
Regarding Section 1251, H.Rept. 116-333 states
Modification of Indo-Pacific Maritime Security Initiative (sec. 1251)
The House amendment contained a provision (sec. 1241) that would modify the authority
for the Indo-Pacific Maritime Security Initiative to include additional elements of
assistance and training, require additional information for congressional notifications,
mandate an annual report, and incorporate an assessment, monitoring, and evaluation
program. The provision would also require a one-time report on the initiative.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would, among other modifications, make
clarifying changes to the required annual report on the initiative and strike the requirement
for a one-time report. The conferees note that units to receive assistance under the Indo-
Pacific Maritime Security Initiative undergo required “Leahy Law” human rights vetting
before such assistance is provided.
Section 1252 of H.Rept. 116-333 states
SEC. 1252. EXPANSION OF INDO-PACIFIC MARITIME SECURITY INITIATIVE
AND LIMITATION ON USE OF FUNDS.
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(a) Expansion of Recipient Countries.—Subsection (b) of section 1263 of the National
Defense Authorization Act for Fiscal Year 2016 (10 U.S.C. 333 note) is amended by adding
at the end the following new paragraphs:
``(8) The Federated States of Micronesia.
``(9) The Independent State of Samoa.
``(10) The Kingdom of Tonga.
``(11) Papua New Guinea.
``(12) The Republic of Fiji.
``(13) The Republic of Kiribati.
``(14) The Republic of the Marshall Islands.
``(15) The Republic of Nauru.
``(16) The Republic of Palau.
``(17) The Republic of Vanuatu.
``(18) The Solomon Islands.
``(19) Tuvalu.’’.
(b) Limitation on Use of Funds.—
(1) In general.—None of the funds authorized to be appropriated for the Indo-Pacific
Maritime Security Initiative under such section may be obligated or expended to provide
training or assistance to a recipient country described in any of paragraphs (8) through (19)
of subsection (b) of such section until the date on which the Secretary of Defense, with the
concurrence of the Secretary of State, submits to the appropriate committees of Congress
a report on security cooperation with and security assistance to such countries.
(2) Report.—The report referred to in paragraph (1) shall include the following:
(A) An identification of elements of the theater campaign plan of the geographic combatant
command concerned and the interagency integrated country strategy that will be advanced
by expansion of security cooperation and assistance programs and activities to such
recipient countries.
(B) An assessment of the capabilities, and a description of the capability enhancement
priorities, of each such country.
(C) A description of the manner in which United States security cooperation and assistance
authorities, including assistance provided pursuant to other security cooperation authorities
of the Department of Defense or security assistance authorities of the Department of State,
may be used to enhance the priority capabilities of each such country.
(D) A description, as appropriate, of the manner in which the Secretary of Defense, together
with the Secretary of State, shall ensure that security cooperation with and security
assistance to such countries complement regional engagement efforts undertaken by United
States allies, including the Pacific Step-Up efforts of the Government of Australia and the
``Pacific Reset’’ efforts of the Government of New Zealand.
(E) A description of absorption capacity and sustainability issues for each such country and
a plan to resolve such issues.
(F) An identification of the estimated annual cost for such assistance and training for fiscal
years 2020 through 2025.
(c) Appropriate Committees of Congress Defined.—In this section, the term ``appropriate
committees of Congress’’ means—
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(1) the congressional defense committees;
(2) the Committee on Foreign Relations and the Subcommittee on State, Foreign
Operations, and Related Programs of the Committee on Appropriations of the Senate; and
(3) the Committee on Foreign Affairs and the Subcommittee on State, Foreign Operations,
and Related Programs of the Committee on Appropriations of the House of
Representatives.
Section 1258 of H.Rept. 116-333 states
SEC. 1258. STATEMENT OF POLICY AND SENSE OF CONGRESS ON, AND
STRATEGY TO FULFILL OBLIGATIONS UNDER, MUTUAL DEFENSE TREATY
WITH THE REPUBLIC OF THE PHILIPPINES.
(a) Statement of Policy.—It is the policy of the United States that—
(1) while the United States has long adopted an approach that takes no position on the
ultimate disposition of the disputed sovereignty claims in the South China Sea, disputing
states should—
(A) resolve their disputes peacefully without the threat or use of force; and
(B) ensure that their maritime claims are consistent with international law; and
(2) an armed attack on the armed forces, public vessels, or aircraft of the Republic of the
Philippines in the Pacific, including the South China Sea, would trigger the mutual defense
obligations of the United States under Article IV of the Mutual Defense Treaty ``to meet
common dangers in accordance with its constitutional processes’’.
(b) Sense of Congress.—It is the sense of Congress that the Secretary of State and the
Secretary of Defense should—
(1) affirm the commitment of the United States to the Mutual Defense Treaty;
(2) preserve and strengthen the military alliance of the United States with the Republic of
the Philippines;
(3) prioritize efforts to develop a shared understanding of alliance commitments and
defense planning; and
(4) provide appropriate support to the Republic of the Philippines to strengthen the self-
defense capabilities of the Republic of the Philippines, particularly in the maritime domain.
(c) Strategy Required.—
(1) In general.—Not later than 1 year after the date of the enactment of this Act, the
Secretary of Defense, in consultation with the Secretary of State, shall submit to the
appropriate committees of Congress a report that sets forth the strategy of the
Department of Defense for achieving the objectives described in subsection (b).
(2) Elements of strategy.—The strategy required by paragraph (1) shall include the
following:
(A) A description of the national security interests and objectives of the United States
furthered by the Mutual Defense Treaty.
(B) A description of the regional security environment, including—
(i) an assessment of threats to both the United States and the Republic of the Philippines
national security interests in the region and the role of the Department in addressing such
threats;
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(ii) a description of the strategic security challenges that are detrimental to regional peace
and global stability, including challenges posed by the People’s Republic of China, violent
extremist organizations, and natural disasters; and
(iii) a description of each violent extremist organization that presents a threat to the
Republic of the Philippines, including, with respect to each such organization—
(I) the primary objectives of the organization;
(II) an assessment of—
(aa) the capacity and capability of the organization;
(bb) the transnational threat posed by the organization;
(cc) recent trends in the capability and influence of the organization;
(dd) the potential for the organization to reconstitute, expand, or otherwise pose a
significant transnational threat; and
(ee) the conditions that contribute to efforts of the organization to reconstitute, expand, or
pose such a threat; and
(III) a description of the metrics used to assess the capability and influence of the
organization.
(C) A description of Department objectives with the Republic of the Philippines,
including—
(i) the benchmarks for assessing progress towards such objectives; and
(ii) the Department strategy to achieve such objectives, including through—
(I) defense cooperation;
(II) use of security cooperation authorities; and
(III) other support or activities in the Republic of the Philippines.
(D) An identification of all current and planned Department resources, programs, and
activities to support the strategy required by paragraph (1), including a review of the
necessity of an ongoing named operation and the criteria used to determine such necessity.
(d) Definitions.—In this section:
(1) Appropriate committees of congress.—The term ``appropriate committees of
Congress’’ means—
(A) the congressional defense committees; and
(B) the Committee on Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives.
(2) Mutual defense treaty.—The term ``Mutual Defense Treaty’’ means the Mutual
Defense Treaty between the Republic of the Philippines and the United States of America,
done at Washington August 30, 1951.
Section 1260 of H.Rept. 116-333 states in part:
SEC. 1260. MODIFICATION OF ANNUAL REPORT ON MILITARY AND
SECURITY DEVELOPMENTS INVOLVING THE PEOPLE’S REPUBLIC OF CHINA.
(a) Modification to Annual Report Requirements.—Section 1202 of the National Defense
Authorization Act for Fiscal Year 2000 (10 U.S.C. 113 note) is amended as follows:
…
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(2) In subsection (b)—
…
(B) by adding at the end the following:
``(29) Developments relating to the China Coast Guard, including an assessment of—
``(A) how the change in the Guard’s command structure to report to China’s Central
Military Commission affects the Guard’s status as a law enforcement entity;
``(B) the implications of such command structure with respect to the use of the Guard as a
coercive tool to conduct `gray zone’ activities in the East China Sea and the South China
Sea; and
``(C) how the change in such command structure may affect interactions between the Guard
and the United States Navy….
South China Sea and East China Sea Sanctions Act of 2019 (H.R.
3508/S. 1634)
House
H.R. 3508, a bill “to impose sanctions with respect to the People’s Republic of China in relation
to activities in the South China Sea and the East China Sea, and for other purposes,” was
introduced on June 26, 2019.
Senate
S. 1634, a bill “to impose sanctions with respect to the People’s Republic of China in relation to
activities in the South China Sea and the East China Sea, and for other purposes,” was introduced
on May 23, 2019.
U.S.-China Economic and Security Review Act of 2019 (H.R. 2565/S.
987)
House
H.R. 2565, a bill “to implement the recommendations of the U.S.–China Economic and Security
Review Commission, and for other purposes,” was introduced on May 7, 2019.
Section 8 of H.R. 2565 as introduced requires the Secretaries of Defense and Homeland Security
to jointly submit a report on the China Coast Guard (CCG) that includes, among other things, “the
implications of the new command structure of the CCG with respect to the use of the CCG as a
coercive tool in ‘gray zone’ activity in the East China Sea and the South China Sea.”
Senate
S. 987, a bill “to implement the recommendations of the U.S.–China Economic and Security
Review Commission, and for other purposes,” was introduced on April 2, 2019.
Section 8 of S. 987 as introduced requires the Secretaries of Defense and Homeland Security to
jointly submit a report on the China Coast Guard (CCG) that includes, among other things, “The
implications of the new command structure of the CCG with respect to the use of the CCG as a
coercive tool in ‘gray zone’ activity in the East China Sea and the South China Sea.”
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Appendix A. Maritime Territorial and EEZ Disputes
in SCS and ECS
This appendix provides background information on maritime territorial and EEZ disputes in the
SCS and ECS that involve China. Other CRS reports provide additional and more detailed
information on these disputes.83
Maritime Territorial Disputes
China is a party to multiple maritime territorial disputes in the SCS and ECS, including in
particular the following (see Figure A-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.84
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.85 There are additional maritime territorial
disputes in the Western Pacific that do not involve China.86 Maritime territorial disputes in the
SCS and ECS date back many years, and have periodically led to diplomatic tensions as well as
confrontations and incidents at sea involving fishing vessels, oil exploration vessels and oil rigs,
coast guard ships, naval ships, and military aircraft.87

83 See CRS In Focus IF10607, South China Sea Disputes: Background and U.S. Policy, by Ben Dolven, Susan V.
Lawrence, and Ronald O'Rourke; CRS Report R42930, Maritime Territorial Disputes in East Asia: Issues for
Congress, by Ben Dolven, Mark E. Manyin, and Shirley A. Kan; CRS Report R44072, Chinese Land Reclamation in
the South China Sea: Implications and Policy Options, by Ben Dolven et al.; CRS Report R43894, China's Air Defense
Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.
84 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.
85 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.
86 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.
87 One observer states that “notable incidents over sovereignty include the Chinese attack on the forces of the Republic
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Figure A-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.

of Vietnam [South Vietnam] in the Paracel Islands in 1974, China’s attack on Vietnamese forces near Fiery Cross Reef
[in the Spratly Islands] in 1988, and China’s military ouster of Philippines forces from Mischief Reef [also in the
Spratly Islands] in 1995.” Peter Dutton, “Three Dispute and Three Objectives,” Naval War College Review, Autumn
2011: 43. A similar recounting can be found in Department of Defense, Annual Report to Congress, Military and
Security Developments Involving the People’s Republic of China, 2011, p. 15.
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EEZ Dispute and U.S.-Chinese Incidents at Sea
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 other countries is that while the United Nations Convention on the Law of
the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states
the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it
does not give coastal states the right to regulate foreign military activities in the parts of their
EEZs beyond their 12-nautical-mile territorial waters.88
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.89
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 3 of

88 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.
89 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.)
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these countries—China, North Korea, and Peru—have directly interfered with foreign military
activities in their EEZs.90
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;91
 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 Island92—
DOD characterized the intercept as “very, very close, very dangerous”;93 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.”94

90 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.
91 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.
92 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.
93 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.
94 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,
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Figure A-2 shows the locations of the 2001, 2002, and 2009 incidents listed in the first two
bullets above. The incidents shown in Figure A-2 are the ones most commonly cited prior to the
December 2013 involving the Cowpens, but some observers list additional incidents as well.95
Figure A-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.

“Pentagon: ‘Unsafe’ Intercept over South China Sea,” CNN, May 19, 2016.
95 For example, one set of observers, in an August 2013 briefing, provided the following list of incidents in which
China has challenged or interfered with operations by U.S. ships and aircraft and ships from India’s navy: EP-3
Incident (April 2001); USNS Impeccable (March 2009); USNS Victorious (May 2009); USS George Washington
(July-November 2010); U-2 Intercept (June 2011); INS [Indian Naval Ship] Airavat (July 2011); INS [Indian Naval
Ship] Shivalik (June 2012); and USNS Impeccable (July 2013). (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.
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DOD stated in 2015 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),96 which was signed in April 2014.97
On September 30, 2018, an incident occurred in the SCS between the U.S. Navy destroyer
Decatur (DDG-73) and a Chinese destroyer, as the Decatur was conducting a FON operation near
Gaven Reef in the Spratly Islands. In the incident, the Chinese destroyer overtook the U.S.
destroyer close by on the U.S. destroyer’s port (i.e., left) side, requiring the U.S. destroyer to turn
starboard (i.e., to the right) to avoid the Chinese ship. U.S. officials stated that at the point of
closest approach between the two ships, the stern (i.e., back end) of the Chinese ship came within
45 yards (135 feet) of the bow (i.e., front end) of the Decatur. As the encounter was in progress,
the Chinese ship issued a warning by radio stating, “If you don’t change course your [sic] will
suffer consequences.” One observer, commenting on the incident, stated, “To my knowledge, this
is the first time we’ve had a direct threat to an American warship with that kind of language.”
U.S. officials characterized the actions of the Chinese ship in the incident as “unsafe and
unprofessional.”98
A November 3, 2018, press report states the following:

96 For more on the CUES agreement, see “2014 Code for Unplanned Encounters at Sea (CUES)” below.
97 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 14-15.
98 John Power and Catherine Wong, “Exclusive Details and Footage Emerge of Near Collision Between Warships in
South China Sea,” South China Morning Post, November 4, 2018. See also Jane Perlez and Steven Lee Myers, “‘A
Game of Chicken’: U.S. and China Are Risking a Clash at Sea,” New York Times, November 8, 2018; Geoff
Ziezulewicz, “Video Shows Near Collision of US and Chinese Warships,” Navy Times, November 5, 2018; John
Grady, “Panel: Chinese Warships Acting More Aggressively Towards Foreign Navies in the South China Sea,” USNI
News, October 16, 2018; Bill Gertz, “Bolton Warns Chinese Military to Halt Dangerous Naval Encounters,”
Washington Free Beacon, October 12, 2018; James Holmes, “South China Sea Showdown: What Happens If a U.S.
Navy and Chinese Vessel Collide?” National Interest, October 6, 2018; Kristin Huang and Keegan Elmer, “Beijing’s
Challenge to US Warship in South China Sea ‘Deliberate and Calculated,’ Observers Say,” South China Morning Post,
October 5, 2018; Stacie E. Goddard, “The U.S. and China Are Playing a Dangerous Game. What Comes Next?”
Washington Post, October 3, 2018; Brad Lendon, “Photos Show How Close Chinese Warship Came to Colliding with
US Destroyer,” CNN, October 3, 2018; Ben Werner, “China’s Atypical Response To US Navy FONOPS May Be a
Message to Trump Adminsitration,” USNI News, October 3, 2018; Gordon Lubold and Jeremy Page, “Pentagon Says
Chinese Ship Harrassed a U.S. Vessel,” Wall Street Journal, October 1, 2018; Barbara Starr and Ryan Browne,
“Chinese Warship in ‘Unsafe’ Encounter with US Destroyer, Amid Rising US-China Tensions,” CNN, October 1,
2018; Ben Werner, “Destroyer USS Decatur Has Close Encounter With Chinese Warship,” USNI News, October 1,
2018.
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The US Navy has had 18 unsafe or unprofessional encounters with Chinese military forces
in the Pacific since 2016, according to US military statistics obtained by CNN.
“We have found records of 19 unsafe and/or unprofessional interactions with China and
Russia since 2016 (18 with China and one with Russia),” Cmdr. Nate Christensen, a
spokesman for the US Pacific Fleet, told CNN.
A US official familiar with the statistics told CNN that 2017, the first year of the Trump
administration, saw the most unsafe and or unprofessional encounters with Chinese forces
during the period.
At least three of those incidents took place in February, May and July of that year and
involved Chinese fighter jets making what the US considered to be “unsafe” intercepts of
Navy surveillance planes.
While the 18 recorded incidents only involved US naval forces, the Air Force has also had
at least one such encounter during this period….
The US Navy told CNN that, in comparison, there were 50 unsafe or unprofessional
encounters with Iranian military forces since 2016, with 36 that year, 14 last year and none
in 2018. US and Iranian naval forces tend to operate in relatively narrow stretches of water,
such as the Strait of Hormuz, increasing their frequency of close contact.99
DOD states that
Although China has long challenged foreign military activities in its maritime zones in a
manner that is inconsistent with the rules of customary international law as reflected in the
LOSC, the PLA has recently started conducting the very same types of military activities
inside and outside the first island chain in the maritime zones of other countries. This
contradiction highlights China’s continued lack of commitment to the rules of customary
international law.
Even though China is a state party to the LOSC [i.e., UNCLOS], China’s domestic laws
restrict military activities in its exclusive economic zone (EEZ), including intelligence
collection and military surveys, contrary to LOSC. At the same time, the PLA is
increasingly undertaking military operations in other countries’ EEZs. The map on the
following page [not reproduced here] depicts new PLA operating areas in foreign EEZs
since 2014. In 2017, the PLAN conducted air and naval operations in Japan’s EEZ;
employed an AGI [intelligence-gathering ship] ship, likely to monitor testing of a THAAD
system in the U.S. EEZ near the Aleutian Islands; and employed an AGI ship to monitor a
multi-national naval exercise in Australia’s EEZ. PLA operations in foreign EEZs have
taken place in Northeast and Southeast Asia, and a growing number of operations are also
occurring farther from Chinese shores.100
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:

99 Ryan Browne, “US Navy Has Had 18 Unsafe or Unprofessional Encounters with China since 2016,” CNN,
November 3, 2018. See also Kristin Huang, “China Has a History of Playing Chicken with the US Military—
Sometimes These Dangerous Games End in Disaster,” Business Insider, October 2, 2018.
100 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2018, pp. 67-68. See also Christopher Woody, “This New Defense Department Map Shows How
China Says One Thing and Does Another with Its Military Operations at Sea,” Business Insider, August 17, 2018.
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 The two issues are related because China can claim EEZs from inhabitable
islands over which it has sovereignty, so accepting China’s claims to sovereignty
over inhabitable islands in the SCS or ECS could permit China to expand the
EEZ zone within which China claims a right to regulate foreign military
activities.
 The two issues are ultimately separate from one another because even if all the
territorial disputes in the SCS and ECS were resolved, and none of China’s
claims in the SCS and ECS were accepted, China could continue to apply its
concept of its EEZ rights to the EEZ that it unequivocally derives from its
mainland coast—and it is in this unequivocal Chinese EEZ that several of the
past U.S.-Chinese incidents at sea have occurred.
Press reports of maritime disputes in the SCS and ECS sometimes focus on territorial disputes
while devoting little or no attention to the EEZ dispute, or do relatively little to distinguish the
EEZ dispute from the territorial disputes. From the U.S. perspective, 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.

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Appendix B. 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 security101 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.”102 (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.103
U.S.-Philippines Mutual Defense Treaty104
The 1951 U.S.-Philippines mutual defense treaty105 states in Article IV that

101 Treaty of mutual cooperation and security, signed January 19, 1960, entered into force June 23, 1960, 11 UST 1632;
TIAS 4509; 373 UNTS.
102 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://archive.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.
103 See, for example, Yoichiro Sato, “The Senkaku Dispute and the US-Japan Security Treaty,” Pacific Forum CSIS,
September 10, 2012 (PacNet #57); 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.
104 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.
105 Mutual defense treaty, signed August 30, 1951, entered into force August 27, 1952, 3 UST 3947, TIAS 2529, 177
UNTS 133.
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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.106 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.107 U.S. officials have made their own
statements regarding the treaty’s application to territorial disputes in the SCS.108
As mentioned earlier, on March 1, 2019, Secretary of State Michael Pompeo stated, “As the
South China Sea is part of the Pacific, any armed attack on Philippine forces, aircraft, or public
vessels in the South China Sea will trigger mutual defense obligations under Article 4 of our
Mutual Defense Treaty [with the Philippines].”109

106 See, for example, the Joint Statement of the United States-Philippines Ministerial Dialogue of April 30, 2012,
available at https://2009-2017.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.
107 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/.
108 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.
109 For citations, see footnote 69.
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Appendix C. Treaties and Agreements Related to the
Maritime Disputes
This appendix briefly reviews some international treaties and agreements that bear on the issues
discussed in this report.
UN Convention on Law of the Sea (UNCLOS)
Overview of UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS) “lays down a comprehensive
regime of law and order in the world’s oceans and seas[,] establishing rules governing all uses of
the oceans and their resources.”110 It builds on four 1958 law of the sea conventions to which the
United States, following Senate consent to ratification, became a party in 1961, and which
entered force between 1962 and 1966.111 All four treaties remain in force for the United States.112
UNCLOS was adopted in 1982 as the “culmination of more than 14 years of work involving
participation by more than 150 countries representing all regions of the world, all legal and
political systems and the spectrum of socio/economic development.”113 The treaty was modified
in 1994 by an agreement relating to the implementation of Part XI of the treaty, which relates to
the seabed and ocean floor and subsoil thereof that are beyond the limits of national jurisdiction.
UNCLOS 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
April 8, 2019, 168 nations were party to the treaty.114 As discussed further in the next section, the
United States is not a party to the treaty.

110 United Nations, “United Nations Convention on the Law of the Sea of 10 December 1982, Overview and full text,”
updated June 28, 2019, accessed August 2, 2019, at https://www.un.org/depts/los/convention_agreements/
convention_overview_convention.htm.
111 These are the Convention on the Territorial Sea and Contiguous Zone, which entered into force on September 10,
1964, the Convention on the Continental Shelf, which entered into force on 10 June 10, 1964, the Convention on the
High Seas, which entered into force on September 30, 1962, and the Convention on Fishing and Conservation of Living
Resources of the High Seas, which entered into force on March 20, 1966. The four 1958 treaties resulted from the first
Conference on the Law of the Sea (UNCLOS I), which took place in 1958. (For additional discussion, see United
Nations, “United Nations Conference on the Law of the Sea,” undated, accessed August 2, 2019, at http://legal.un.org/
diplomaticconferences/1958_los/, and United Nations, “1958 Geneva Conventions on the Law of the Sea,” undated,
accessed August 2, 2019, at http://legal.un.org/avl/ha/gclos/gclos.html.)
112 See Department of State, Treaties in Force, Section 2, Multilateral Treaties in Force as of January 1, 2019, pp. 526,
501, 525, and 516, respectively.
113 United Nations, “United Nations Convention on the Law of the Sea of 10 December 1982, Overview and full text,”
updated June 28, 2019, accessed August 2, 2019, at https://www.un.org/depts/los/convention_agreements/
convention_overview_convention.htm. More specifically, the treaty resulted from the Third United Nations Conference
on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. For additional discussion, see United
Nations, “Third United Nations Conference on the Law of the Sea,” undated, accessed August 2, 2019, at
http://legal.un.org/diplomaticconferences/1973_los/.
114 Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as
of February 3, 2017, accessed December 13, 2018, at http://www.un.org/Depts/los/reference_files/
chronological_lists_of_ratifications.htm#.
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U.S. Not a Party to UNCLOS
As noted above, the United States is not a party to UNCLOS.115 Although the United States is not
a party to UNCLOS, the United States accepts and acts in accordance with the non-seabed mining
provisions of the treaty, such as those relating to navigation and overflight, which the United
States views as reflecting customary international law of the sea.
The United States did not sign UNCLOS when it was adopted in 1982 because the United States
objected to the seabed mining provisions of Part XI of the treaty. Certain other countries also
expressed concerns about these provisions.116 The United Nations states that “To address certain
difficulties with the seabed mining provisions contained in Part XI of the Convention, which had
been raised, primarily by the industrialized countries, the Secretary-General convened in July
1990 a series of informal consultations which culminated in the adoption, on 28 July 1994, of the
Agreement relating to the implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982. The Agreement entered into force on 28 July 1996.”117
The United States signed the 1994 agreement on July 29, 1994, and U.S. administrations since
then have supported the United States becoming a party to UNCLOS. The United Nations
includes the United States on a list of countries for which the 1994 agreement is in a status of
“provisional application,” as of November 16, 1994, by virtue of its signature.118
The 1982 treaty and the 1994 agreement were transmitted to the Senate on October 6, 1994,
during the 103rd Congress, becoming Treaty Document 103-39. Subsequent Senate action on
Treaty Document 103-39, as presented at Congress.gov,119 can be summarized as follows:
 In 2004, during the 108th Congress, the Senate Foreign Relations Committee held
hearings on Treaty Document 103-39 and reported it favorably with a resolution
of advice and consent to ratification with declarations and understandings. No
further action was taken during the 108th Congress, and the matter was re-
referred to the committee at the sine die adjournment of the 108th Congress.
 In 2007, during the 110th Congress, the committee held hearings on Treaty
Document 103-39 and reported it favorably with a resolution of advice and
consent to ratification with declarations, understandings, and conditions. No

115 The United States is not a signatory to the treaty. On July 29, 1994, the United States became a signatory to the 1994
agreement relating to the implementation of Part XI of the treaty. The United States has not ratified either the treaty or
the 1994 agreement.
116 In a March 10, 1983, statement on U.S. oceans policy, President Reagan stated, “Last July, I announced that the
United States will not sign the United Nations Law of the Sea Convention that was opened for signature on December
10. We have taken this step because several major problems in the Convention's deep seabed mining provisions are
contrary to the interests and principles of industrialized nations and would not help attain the aspirations of developing
countries. The United States does not stand alone in those concerns. Some important allies and friends have not signed
the convention. Even some signatory states have raised concerns about these problems.” (Ronald Reagan Presidential
Library & Museum, “Statement on United States Oceans Policy,” undated, accessed August 2, 2019, at
https://www.reaganlibrary.gov/research/speeches/31083c.)
117 United Nations, “Agreement relating to the implementation of Part XI of the United Nations Convention on the Law
of the Sea of 10 December 1982,” updated September 2, 2016, accessed August 1, 2019, at https://www.un.org/depts/
los/convention_agreements/convention_overview_part_xi.htm.
118 United Nations, “Agreement relating to the implementation of Part XI of the United Nations Convention on the Law
of the Sea of 10 December 1982,” status as of August 1, 2019, accessed August 1, 2019, at https://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-6-a&chapter=21&clang=_en.
119 United Nations Convention on the Law of the Sea, Senate Consideration of Treaty Document 103-39, accessed July
31, 2019, at https://www.congress.gov/treaty-document/103rd-congress/39. For a timeline of selected key events
relating to the treaty, see Department of State, “Law of the Sea Convention,” March 7, 2019, accessed July 30, 2019, at
https://www.state.gov/law-of-the-sea-convention/.
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further action was taken during the 110th Congress, and the matter was re-referred
to the committee at the sine die adjournment of the 110th Congress.
 In 2012, during the 112th Congress, the committee held hearings on Treaty
Document 103-39. No further action was taken during the 112th Congress.
The full Senate to date has not voted on the question of whether to give its advice and consent to
ratification of Treaty Document 103-39. The latest Senate action regarding Treaty Document 103-
39 recorded at Congress.gov is a hearing held by the Senate Foreign Relations Committee on
June 28, 2012.
1983 Statement on U.S. Ocean Policy
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
of its coast. This will provide United States jurisdiction for mineral resources out to 200
nautical miles that are not on the continental shelf.120
1972 Convention on Preventing Collisions at Sea (COLREGs)
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, but not Taiwan),121 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.”122 Although

120 United States Ocean Policy, Statement by the President, March 10, 1983, accessed April 15, 2015, 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.
121 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.
122 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
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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.”123 It thus applies to military vessels, paramilitary and
law enforcement (i.e., coast guard) vessels, maritime militia vessels, and fishing boats, among
other vessels.
In a February 18, 2014, letter to Senator Marco Rubio concerning the December 5, 2013, incident
involving the Cowpens, the State Department stated the following:
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 ASEAN124 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.125
In the 2014 edition of its annual report on military and security developments involving China,
the DOD states the following:
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.126

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.
123 Rule 1(a) of the convention.
124 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.
125 Letter dated February 18, 2014, from Julia Frifield, Assistant Secretary, Legislative Affairs, Department of State, to
The Honorable Marco Rubio, United States Senate. Used here with the permission of the office of Senator Rubio. The
letter begins: “Thank you for your letter of January 31 regarding the December 5, 2013, incident involving a Chinese
naval vessel and the USS Cowpens.” The text of Senator Rubio’s January 31, 2014, letter was accessed March 13,
2014, at http://www.rubio.senate.gov/public/index.cfm/2014/1/rubio-calls-on-administration-to-address-provocative-
chinese-behavior.
126 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2014, p. 4.
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2014 Code for Unplanned Encounters at Sea (CUES)
On April 22, 2014, representatives of 21 Pacific-region navies (including China, Japan, and the
United States), meeting in Qingdao, China, at the 14th Western Pacific Naval Symposium
(WPNS),127 unanimously agreed to a Code for Unplanned Encounters at Sea (CUES). CUES, a
nonbinding 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.128 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
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.”129
DOD stated in 2015 that
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 [maritime law enforcement] vessels would be an important step in reducing
the risk of unintentional conflict.130
U.S. Navy officials have stated that the CUES agreement is generally working well, and that the
United States (as noted in the passage above) is interested in expanding the agreement to cover
coast guard ships.131 Officials from Singapore and Malaysia reportedly have expressed support

127 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.
128 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.
129 Jeff M. Smith and Joshua Eisenman, “China and America Clash on the High Seas: The EEZ Challenge,” The
National Interest, May 22, 2014.
130 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 31.
131 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.
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for the idea.132 An Obama Administration fact sheet about Chinese President Xi Jinping’s state
visit to the United States on September 24-25, 2015, stated the following:
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.133
A November 3, 2018, press report published following an incident in the SCS between a U.S.
Navy destroyer and a Chinese destroyer stated the following:
The U.S. Navy’s chief of naval operations has called on China to return to a previously
agreed-upon code of conduct for at-sea encounters between the ships of their respective
navies, stressing the need to avoid miscalculations.
During a Nov. 1 teleconference with reporters based in the Asia-Pacific region, Adm. John
Richardson said he wants the People’s Liberation Army Navy to “return to a consistent
adherence to the agreed-to code that would again minimize the chance for a miscalculation
that could possibly lead to a local incident and potential escalation.”
The CNO cited a case in early October when the U.S. Navy’s guided-missile destroyer
Decatur reported that a Chinese Type 052C destroyer came within 45 yards of the Decatur
as it conducted a freedom-of-navigation operation in the South China Sea.
However, he added that the “vast majority” of encounters with Chinese warships in the
South China Sea “are conducted in accordance with the Code of Unplanned Encounters at
Sea and done in a safe and professional manner.” The code is an agreement reached by 21
Pacific nations in 2014 to reduce the chance of an incident at sea between the agreement’s
signatories.134
2014 U.S.-China 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.135 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.136 The MOU as signed in November 2014 included an annex on rules of

132 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. See also Hoang Thi Ha, “Making the Cues Code Work in the
South China Sea,” Today, September 8, 2016.
133 “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.
134 Mike Yeo, “Top US Navy Officer Tells China to Behave at Sea,” Defense News, November 3, 2018.
135 Memorandum of Understanding Between The Department of Defense of the United States of America and the
Ministry of National Defense of the People’s Republic of China Regarding the Rules of Behavior for Safety of Air and
Maritime Encounters, November 12, 2014.
136 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
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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, 2015.137
An October 20, 2018, press report states the following:
Eighteen nations including the U.S. and China agreed in principle Saturday [October 20]
to sign up to guidelines governing potentially dangerous encounters by military aircraft, a
step toward stabilizing flashpoints but one that leaves enough wiggle room to ignore the
new standards when a country wants.
The guidelines essentially broaden a similar agreement reached by the U.S. and China three
years ago and are an attempt to mitigate against incidents and collisions in some of the
world’s most tense areas….
The in-principle agreement, which will be put forward for formal adoption by the group of
18 nations next year, took place at an annual meeting of defense ministers under the aegis
of the 10-country Association of Southeast Asian Nations, hosted by Singapore. Asean
nations formally adopted the new guidelines themselves Friday.
“The guidelines are very useful in setting norms,” Singapore’s defense minister Ng Eng
Hen told reporters after the meeting. “All the 18 countries agreed strong in-principle
support for the guidelines.”…
The aerial-encounters framework agreed to Saturday includes language that prohibits fast
or aggressive approaches in the air and lays out guidelines on clear communications
including suggestions to “refrain from the use of uncivil language or unfriendly physical
gestures.”
Signatories to the agreement, which is voluntary and not legally binding, would agree to
avoid unprofessional encounters and reckless maneuvers….
The guidelines fall short on enforcement and geographic specifics, but they are “better than
nothing at all,” said Evan Laksmana, senior researcher with the Center for Strategic and
International Studies in Jakarta. “Confidence-building surrounding military crises or
encounters can hardly move forward without some broadly agreed-upon rules of the game,”
he said.138

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?” National Interest, January 30, 2015; Mira Rapp-Hooper and Bonnie Glaser, “In Confidence: Will We Know
If US-China CBMs Are Working?” Asia Maritime Transparency Initiative (Center for Strategic and International
Studies), February 4, 2015; Mira Rapp-Hooper, “What’s in a Confidence Building Measure?” Lawfare, February 8,
2015; Peter Dutton and Andrew Erickson, “When Eagle Meets Dragon: Managing Risk in Maritime East Asia,” Real
Clear Defense, March 25, 2015.
137 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.
138 Jake Maxwell Watts, “Defense Chiefs Seek Friendlier Skies Over Asia’s Military Flashpoints,” Wall Street Journal,
October 20, 2018.
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Negotiations on SCS Code of Conduct (COC)
In 2002, China and the 10 member states of ASEAN signed a nonbinding 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....139
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.
On March 8, 2017, China announced that the first draft of a framework for the COC had been
completed, and that “China and ASEAN countries feel satisfied with this.”140 On May 18 and 19,
2017, it was reported that the China and the ASEAN countries had agreed on the framework.141
A May 18, 2017, press report stated that [China’s Vice-Foreign Minister] Liu Zhemin “called on
others to stay out [of the negotiations], apparently a coded message to the United States. ‘We
hope that our consultations on the code are not subject to any outside interference,’ Liu said.”142
An August 3, 2017, press report stated that “the Association of South East Asian Nations
(ASEAN) has omitted references to China’s most controversial activities in its joint communique,
a draft reviewed by Reuters shows. In addition, a leaked blueprint for establishing an ASEAN-

139 Text as taken from https://cil.nus.edu.sg/rp/pdf/
2002%20Declaration%20on%20the%20Conduct%20of%20Parties%20in%20the%20South%20China%20Sea-pdf.pdf.
140 See, Ben Blanchard, “China Says First Draft of South China Sea Code of Conduct Ready,” Reuters, March 8, 2017;
Hong Thao Nguyen, “A Code of Conduct for the South China Sea: Effective Tool or Temporary Solution?” Maritime
Awareness Project, March 28, 2017. The second of these two sources identifies the reported draft as being that of a
framework for the COC rather than a full draft text of the COC.
141 Ben Blanchard, “China, ASEAN Agree on Framework for South China Sea Code of Conduct,” Reuters, May 18,
2017; Agence France-Presse, “China, ASEAN Agree on Draft Framework for South China Sea Code,” Yahoo News,
May 19, 2017; Li Xiaokun and Mo Jingxi, “Guideline for Conduct Pact in South China Sea OK’d,” People’s Daily
Online (from China Daily), May 19, 2017.
142 Ben Blanchard, “China, ASEAN Agree on Framework for South China Sea Code of Conduct,” Reuters, May 18,
2017.
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China code of maritime conduct does not call for it to be legally binding, or seek adherence to the
United Nations Convention on the Law of the Sea (UNCLOS).”143
An August 6, 2017, press report stated that “Southeast Asian nations agreed with China on
Sunday [August 6] to endorse a framework for a maritime code of conduct that would govern
behavior in disputed waters of the South China Sea, a small step forward in a negotiation that has
lasted well over a decade…. The unsticking of the framework after years of obstruction is widely
seen as a concession by China, which has opposed any legally binding code on maritime
engagement, stepped up naval patrols and built artificial islands to enforce its claims, equipping
them with military weapons.”144 An August 8, 2017, blog post about the framework states the
following:
In Manila on 6 August 2017, the foreign ministers of ASEAN and China endorsed the
framework for the Code of Conduct for the South China Sea (COC).
While the framework is a step forward in the conflict management process for the South
China Sea, it is short on details and contains many of the same principles and provisions
contained in the 2002 ASEAN-China Declaration on the Conduct of Parties in the South
China Sea (DOC) which has yet to be even partially implemented.
The text includes a new reference to the prevention and management of incidents, as well
as a seemingly stronger commitment to maritime security and freedom of navigation.
However, the phrase “legally binding” is absent, as are the geographical scope of the
agreement and enforcement and arbitration mechanisms.
The framework will form the basis for further negotiations on the COC. Those discussions
are likely to be lengthy and frustrating for those ASEAN members who had hoped to see a
legally binding, comprehensive and effective COC.145
Some observers have argued that China has been dragging out the negotiations on the COC for
years as part of 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.146 An October 22,
2018, press report stated the following:
One of the Chinese provisions in the [draft South China Sea code of conduct] states, “The
Parties shall not hold joint military exercises with countries from outside the region, unless
the parties concerned are notified beforehand and express no objection.”
China also proposed cooperation on the marine economy “shall not be conducted in
cooperation with companies from countries outside the region.”
A State Department spokesperson told VOA the United States is concerned by reports
China has been pressing members of the Association of Southeast Asian Nations “in the
closed-door talks, to accept restrictions on their ability to conduct exercises with security

143 Manuel Mogato, “China Set for Easy Ride from ASEAN on Disputed South China Sea,” Reuters, August 3, 2017.
144 Jake Maxwell Watts, “China, Asean to Test Waters on South China Sea,” Wall Street Journal, August 6, 2017. See
also “ASEAN Foreign Ministers Endorse Framework of COC in South China Sea,” Xinhua, August 6, 2017; Cao Siqi,
“China, ASEAN Approve Sea Code,” Global Times, August 6, 2017.
145 Ian Storey, “Assessing the ASEAN-China Framework for the Code of Conduct for the South China Sea,” ISEAS—
Yusof Ishak Institute, August 8, 2017.
146 Seem for example, “China and ASEAN Declare Progress in the South China Sea,” The Economist, May 25, 2017;
Lee YingHui, “A South China Sea Code of Conduct: Is Real Progress Possible?” The Diplomat, November 18, 2017;
Huong Le Thu, “The Dangerous Quest for a Code of Conduct in the South China Sea,” Asia Maritime Transparency
Initiative (Center for Strategic and International Studies), July 13, 2018.
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partners, and to agree not to conduct oil and gas exploration in their claimed waters with
energy firms based in countries which are not part of the ongoing negotiations.”
“These proposals, if accepted, would limit the ability of ASEAN nations to conduct
sovereign, independent foreign and economic policies and would directly harm the
interests of the broader international community,” added the State Department
spokesperson….
“In other words, China would like a veto over all the military exercises held by ASEAN
countries with other nations. I think this really provides some evidence that China indeed
is trying to limit American influence in the region, one might go so far as to say to push
American military presence out of the region eventually, but certainly in the area of the
South China Sea,” said Bonnie Glaser, director of the China Power Project at the Center
for Strategic and International Studies in Washington.147
A September 6, 2018, blog post stated that “any system to effectively manage the South China
Sea disputes would require three things, none of which are achieved yet in the draft text. First, an
effective COC would need to be geographically defined…. Second, an effective COC would need
a dispute settlement mechanism…. Third, any effective regime to manage the South China Sea
disputes would need detailed provisions on fisheries management and oil and gas
development.”148 An October 29, 2018, press report states that “The Philippines on Monday
[October 29] said a set of rules intended to prevent conflict in the South China Sea need not
legally compel countries to follow it—an issue of importance for the Chinese government.”149 A
November 14, 2018, press report stated the following:
A rulebook to settle disputes in the hotly contested South China Sea should be finished in
three years, Chinese Premier Li Keqiang said on Tuesday [November 13], insisting his
nation does not seek “hegemony or expansion.”
Li’s comments appeared to be the first clear timeframe for finishing the code of conduct.
Talks have dragged on for years, with China accused of delaying progress as it prefers to
deal with less powerful countries on a one-to-one basis.150

147 Nike Ching, “South China Sea Code of Conduct Gains Momentum as China Moves to Complete Militarization,”
VOA, October 22, 2018.
148 Gregory B Poling, “South China Sea Code of Conduct Still a Speck on the Horizon,” East Asia Forum, September
6, 2018.
149 Cliff Venzon, “Philippines Hints at Compromise on South China Sea Dispute Pact,” Nikkei Asian Review, October
29, 2018.
150 Jerome Taylor, “Beijing Wants South China Sea Code Finished in Three Years,” Philippine Star, November 14,
2018. See also Lee Chyen Yee, “Chinese Premier Li Says Talks on South China Sea Code Should End in Three Years,”
Reuters, November 12, 2018.
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Appendix D. July 2016 Tribunal Award in SCS
Arbitration Case Involving Philippines and China
This appendix provides background information on the July 2016 tribunal award in the SCS
arbitration case involving the Philippines and China.
Overview
In 2013, the Philippines sought arbitration under UNCLOS over the role of historic rights and the
source of maritime entitlements in the South China Sea, the status of certain maritime features
and the maritime entitlements they are capable of generating, and the lawfulness of certain
actions by China that were alleged by the Philippines to violate UNCLOS. A tribunal was
constituted under UNCLOS to hear the case.
China stated repeatedly that it would not accept or participate in the arbitration and that, in its
view, the tribunal lacked jurisdiction in this matter. China’s nonparticipation did not prevent the
case from moving forward, and the tribunal decided that it had jurisdiction over various matters
covered under the case.
On July 12, 2016, the tribunal issued its award (i.e., ruling) in the case. The award was strongly in
favor of the Philippines—more so than even some observers had anticipated. The tribunal ruled,
among other things, that China’s nine-dash line claim had no legal basis; that none of the land
features in the Spratlys is entitled to any more than a 12-nm territorial sea; that three of the
Spratlys features that China occupies generate no entitlement to maritime zones; and that China
violated the Philippines’ sovereign rights by interfering with Philippine vessels and by damaging
the maritime environment and engaging in reclamation work on a feature in the Philippines’ EEZ.
Under UNCLOS, the award is binding on both the Philippines and China (China’s
nonparticipation in the arbitration does not change this). There is, however, no mechanism for
enforcing the tribunal’s award. The United States has urged China and the Philippines to abide by
the award. China, however, has declared the ruling null and void.151 Philippine President Rodrigo
Duterte, who took office just before the tribunal’s ruling, has not sought to enforce it.
The tribunal’s press release summarizing its award states the following in part:
The Award is final and binding, as set out in Article 296 of the Convention [i.e., UNCLOS]
and Article 11 of Annex VII [of UNCLOS].
Historic Rights and the ‘Nine-Dash Line’: ... On the merits, the Tribunal concluded that
the Convention comprehensively allocates rights to maritime areas and that protections for
pre-existing rights to resources were considered, but not adopted in the Convention.
Accordingly, the Tribunal concluded that, to the extent China had historic rights to
resources in the waters of the South China Sea, such rights were extinguished to the extent
they were incompatible with the exclusive economic zones provided for in the Convention.
The Tribunal also noted that, although Chinese navigators and fishermen, as well as those
of other States, had historically made use of the islands in the South China Sea, there was
no evidence that China had historically exercised exclusive control over the waters or their

151 For discussions of China’s compliance with the award, see Julian Ku and Christopher Mirasola, “Analysis: Chinese
South China Sea Operations Ambiguous After Ruling,” USNI News, October 17, 2016; Julian Ku and Chris Mirasola,
“Tracking China’s Compliance with the South China Sea Arbitral Award,” Lawfare, October 3, 2016; Tuan N. Pham,
“The South China Sea Ruling: 1 Month Later,” The Diplomat, August 12, 2016.
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resources. The Tribunal concluded that there was no legal basis for China to claim historic
rights to resources within the sea areas falling within the ‘nine-dash line’.
Status of Features: ... Features that are above water at high tide generate an entitlement
to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide
do not. The Tribunal noted that the reefs have been heavily modified by land reclamation
and construction, recalled that the Convention classifies features on their natural condition,
and relied on historical materials in evaluating the features. The Tribunal then considered
whether any of the features claimed by China could generate maritime zones beyond 12
nautical miles. Under the Convention, islands generate an exclusive economic zone of 200
nautical miles and a continental shelf, but “[r]ocks which cannot sustain human habitation
or economic life of their own shall have no exclusive economic zone or continental shelf.”
... the Tribunal concluded that none of the Spratly Islands is capable of generating extended
maritime zones. The Tribunal also held that the Spratly Islands cannot generate maritime
zones collectively as a unit. Having found that none of the features claimed by China was
capable of generating an exclusive economic zone, the Tribunal found that it could—
without delimiting a boundary—declare that certain sea areas are within the exclusive
economic zone of the Philippines, because those areas are not overlapped by any possible
entitlement of China.
Lawfulness of Chinese Actions:... Having found that certain areas are within the exclusive
economic zone of the Philippines, the Tribunal found that China had violated the
Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with
Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c)
failing to prevent Chinese fishermen from fishing in the zone. The Tribunal also held that
fishermen from the Philippines (like those from China) had traditional fishing rights at
Scarborough Shoal and that China had interfered with these rights in restricting access. The
Tribunal further held that Chinese law enforcement vessels had unlawfully created a
serious risk of collision when they physically obstructed Philippine vessels.
Harm to Marine Environment: The Tribunal considered the effect on the marine
environment of China’s recent large-scale land reclamation and construction of artificial
islands at seven features in the Spratly Islands and found that China had caused severe
harm to the coral reef environment and violated its obligation to preserve and protect fragile
ecosystems and the habitat of depleted, threatened, or endangered species. The Tribunal
also found that Chinese authorities were aware that Chinese fishermen have harvested
endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea
(using methods that inflict severe damage on the coral reef environment) and had not
fulfilled their obligations to stop such activities.
Aggravation of Dispute: Finally, the Tribunal considered whether China’s actions since
the commencement of the arbitration had aggravated the dispute between the Parties. The
Tribunal found that it lacked jurisdiction to consider the implications of a stand-off between
Philippine marines and Chinese naval and law enforcement vessels at Second Thomas
Shoal, holding that this dispute involved military activities and was therefore excluded
from compulsory settlement. The Tribunal found, however, that China’s recent large-scale
land reclamation and construction of artificial islands was incompatible with the
obligations on a State during dispute resolution proceedings, insofar as China has inflicted
irreparable harm to the marine environment, built a large artificial island in the Philippines’
exclusive economic zone, and destroyed evidence of the natural condition of features in
the South China Sea that formed part of the Parties’ dispute.152

152 Permanent Court of Arbitration press release, “The South China Sea Arbitration (The Republic of the Philippines v.
The People’s Republic of China),” July 12, 2016, pp. 1-2. The full text of the award is: PCA Case Nº 2013-19, In the
Matter of the South China Sea Arbitration before An Arbitral Tribunal Constituted Under Annex VII to the 1982
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Assessments of Impact of Arbitral Award One Year Later
In July 2017, a year after the arbitral panel’s award, some observers assessed the impact to date of
the award. For example, one observer stated the following:
One year ago, China suffered a massive legal defeat when an international tribunal based
in The Hague ruled that the vast majority of Beijing’s extensive claims to maritime rights
and resources in the South China Sea were not compatible with international law. Beijing
was furious.
At an official briefing immediately after the ruling, Vice Foreign Minister Liu Zhenmin
twice called it “nothing more than a piece of waste paper,” and one that “will not be
enforced by anyone.” And yet, one year on, China is, in many ways, abiding by it....
China is not fully complying with the ruling—far from it. On May 1, China imposed a
three-and-a-half-month ban on fishing across the northern part of the South China Sea, as
it has done each year since 1995. While the ban may help conserve fish stocks, its unilateral
imposition in wide areas of the sea violates the ruling. Further south, China’s occupation
of Mischief Reef, a feature that is submerged at high tide and the tribunal ruled was part of
the Philippines’ continental shelf, endures. Having built a vast naval base and runway here,
China looks like it will remain in violation of that part of the ruling for the foreseeable
future.
But there is evidence that the Chinese authorities, despite their rhetoric, have already
changed their behavior. In October 2016, three months after the ruling, Beijing allowed
Philippine and Vietnamese boats to resume fishing at Scarborough Shoal, west of the
Philippines. A China Coast Guard ship still blocks the entrance to the lagoon, but boats can
still fish the rich waters around it. The situation is not perfect but neither is China flaunting
its defiance....
Much more significantly, China has avoided drilling for oil and gas on the wrong side of
the invisible lines prescribed by the United Nations Convention on the Law of the Sea
(UNCLOS)....
... the ruling means China has no claim to the fish, oil or gas more than 12 nautical miles
from any of the Spratlys or Scarborough Shoal.
The Chinese authorities appear not to accept this....
There are clear signs from both China’s words and deeds that Beijing has quietly modified
its overall legal position in the South China Sea. Australian researcher Andrew Chubb
noted a significant article in the Chinese press in July last year outlining the new view....
... China’s new position seems to represent a major step towards compliance with
UNCLOS and, therefore, the ruling. Most significantly, it removes the grounds for Chinese
objections to other countries fishing and drilling in wide areas of the South China Sea....
Overall, the picture is of a China attempting to bring its vision of the rightful regional order
(as the legitimate owner of every rock and reef inside the U-shaped line) within commonly
understood international rules. Far from being “waste paper,” China is taking the tribunal
ruling very seriously. It is still some way from total compliance but it is clearly not
deliberately flouting the ruling.153

United Nations Convention on the law of the Sea between The Republic of the Philippines and The People’s Republic
of China, Award, Arbitral Tribunal: Judge Thomas A. Mensah (Presiding Arbitrator), Judge Jean-Pierre Cot, Judge
Stanislaw Pawlak, Professor Alfred H.A. Soons, Judge Rüdiger Wolfrum, Registry: Permanent Court of Arbitration, 12
July 2016, 479 pp. Further information and documents on the case can be found at http://www.pcacases.com/web/view/
7.
153 Bill Hayton, “Beijing shifts strategy in South China Sea,” Nikkei Asian Review, July 12, 2017.
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Another observer stated the following:
A year ago today, an arbitral tribunal formed pursuant to the United Nations Convention
for the Law of the Sea issued a blockbuster award finding much of China’s conduct in the
South China Sea in violation of international law. As I detailed that day on this blog and
elsewhere, the Philippines won about as big a legal victory as it could have expected. But
as many of us also warned that day, a legal victory is not the same as an actual victory.
In fact, over the past year China has succeeded in transforming its legal defeat into a policy
victory by maintaining its aggressive South China Sea policies while escaping sanction for
its non-compliance. While the election of a new pro-China Philippines government is a key
factor, much of the blame for China’s victory must also be placed on the Obama
Administration....
International law seldom enforces itself, and even the reputational costs of violating
international law do not arise unless other states impose those costs on the law-breaker.
Both the Philippines and the U.S. had policy options that would have raised the costs of
China’s non-compliance with the award. But neither country’s government chose to press
China on the arbitral award....
Looking back after one year, we cannot say (yet) that U.S. policy in the South China Sea
is a failure. But we can say that the U.S. under President Obama missed a huge opportunity
to change the dynamics in the region in its favor, and it is hard to know whether or when
another such opportunity will arise in the future.154
Reported Chinese Characterization of Arbitral Award as
“Waste Paper”
When the arbitral panel’s award was announced, China stated that “China does not accept or
recognize it,” and that the award “is invalid and has no binding force.”155 The first of the two
passages quoted above states that “at an official briefing immediately after the ruling, Vice
Foreign Minister Liu Zhenmin twice called it ‘nothing more than a piece of waste paper,’ and one
that ‘will not be enforced by anyone.’” A November 22, 2017, press report states the following:
An eight-page essay pumped through social media and Chinese state newspapers in recent
days extolled the virtues of president Xi Jinping.
Among his achievements, in the Chinese language version, was that he had turned the
South China Sea Arbitration at The Hague—which found against China—into “waste
paper”.
It was an achievement that state news agency Xinhua’s lengthy hymn, entitled “Xi and His
Era”, did not include in the English version for foreign consumption.156

154 Julian Ku, “Assessing the South China Sea Arbitral Award after One Year: Why China Won and the U.S. is
Losing,” Lawfare, July 12, 2017.
155 See, for example, Jane Perlez, “Tribunal Rejects Beijing’s Claims in South China Sea,” New York Times, July 12,
2016; Thomas E. Kellogg, “The South China Sea Ruling: China's International Law Dilemma,” The Diplomat, July 14,
2017.
156 Kirsty Needham, “'Xi and his Era': China adopts a triumphant tone as US world leadership falters,” Sydney Morning
Herald,” November 22, 2017.
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Assessments and Events Two Years Later
Another observer writes in a May 10, 2018, commentary piece that
Two years after an international tribunal rejected expansive Chinese claims to the South
China Sea, Beijing is consolidating control over the area and its resources. While the U.S.
defends the right to freedom of navigation, it has failed to support the rights of neighboring
countries under the tribunal’s ruling. As a result, Southeast Asian countries are bowing to
Beijing’s demands….
While Beijing’s dramatic military buildup in the South China Sea has received much
attention, its attempts at “lawfare” are largely overlooked. In May, the Chinese Society of
International Law published a “critical study” on the South China Sea arbitration case. It
rehashed old arguments but also developed a newer one, namely that China is entitled to
claim maritime zones based on groups of features rather than from individual features.
Even if China is not entitled to historic rights within the area it claims, this argument goes,
it is entitled to resources in a wide expanse of sea on the basis of an exclusive economic
zone generated from outlying archipelagoes.
But the Convention on the Law of the Sea makes clear that only archipelagic states such
as the Philippines and Indonesia may draw straight archipelagic baselines from which
maritime zones may be claimed. The tribunal also explicitly found that there was “no
evidence” that any deviations from this rule have amounted to the formation of a new rule
of customary international law.
China’s arguments are unlikely to sway lawyers, but that is not their intended audience.
Rather Beijing is offering a legal fig leaf to political and business elites in Southeast Asia
who are already predisposed to accept Beijing’s claims in the South China Sea. They fear
China’s threat of coercive economic measures and eye promises of development through
offerings such as the Belt and Road Initiative.
Why did Washington go quiet on the 2016 tribunal decision? One reason is Philippine
President Rodrigo Duterte’s turn toward China and offer to set aside the ruling. The U.S.
is also worried about the decision’s implications for its own claims to exclusive economic
zones from small, uninhabited land features in the Pacific.
The Trump administration’s failure to press Beijing to abide by the tribunal’s ruling is a
serious mistake. It undermines international law and upsets the balance of power in the
region. Countries have taken note that the tide in the South China Sea is in China’s favor,
and they are making their strategic calculations accordingly. This hurts U.S. interests in the
region.157
A July 12, 2018, press report stated the following:
The Philippines is celebrating today the second anniversary of its landmark arbitration
award against China’s territorial claims in the South China Sea handed down by an arbitral
tribunal in The Hague….
Until now, the Philippines remains sharply divided on how to leverage its arbitration award.
Filipino President Rodrigo Duterte has repeatedly downplayed the relevance of the ruling
by questioning its enforceability amid China’s vociferous opposition.
Soon after taking office in mid-2016, Duterte declared that he would “set aside” the
arbitration award in order to pursue a “soft landing” in bilateral relations with China. In
exchange, he has hoped for large-scale Chinese investments as well as resource-sharing in
the South China Sea….

157 Lynn Kuok, “China Is Winning in the South China Sea,” Wall Street Journal, July 17, 2018.
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Other major leaders in the Philippines, however, have taken a tougher stance and continue
to try to leverage the award to resist China’s expanding footprint in the area.
The Stratbase-Albert Del Rosario Institute, an influential think tank co-founded by former
Philippine Secretary of Foreign Affairs Albert del Rosario, hosted today a high-level forum
on the topic at the prestigious Manila Polo Club.
Del Rosario oversaw the arbitration proceedings against China under Duterte’s
predecessor, Benigno Aquino. He opened the event attended by dignitaries from major
Western and Asian countries with a strident speech which accused China of trying to
“dominate the South China Sea through force and coercion.”
He defended the arbitration award as an “overwhelming victory” to resist “China’s
unlawful expansion agenda.”
The ex-top diplomat also accused the Duterte administration of acquiescence to China by
acting as an “abettor” and “willing victim” by soft-pedaling the Philippines’ claims in the
South China Sea and refusing to raise the arbitration award in multilateral fora.
The keynote speaker of the event was Vice President Leni Robredo, who has recently
emerged as the de facto leader of the opposition against Duterte. Though falling short of
directly naming Duterte, her spirited speech served as a comprehensive indictment of the
administration’s policy in the South China Sea….
Her keynote address, widely covered by the local media, was followed by an even more
spirited speech by interim Supreme Court Chief Justice Antonio Carpio, another leading
critic of Duterte’s foreign policy.
The chief magistrate, who also oversaw the Philippines’ arbitration proceedings against
China, lashed out at Duterte for placing the landmark award in a “deep freeze.”
He called on the Duterte administration to leverage the award by negotiating maritime
delimitation agreements with other Southeast Asian claimant states such as Malaysia and
Vietnam which welcomed the arbitral tribunal’s nullification of China’s nine-dashed-line
map.
He also called on the Philippines to expand its maritime entitlement claims in the area, in
accordance to the arbitration award, by applying for an extended continental shelf in the
South China Sea at the UN.158
Another July 12, 2018, press report stated the following:
Tarpaulins bearing the words “Welcome to the Philippines, province of China” were seen
hanging from several footbridges in Metro Manila Thursday, two years after the country
won its arbitration case against China.
The red banners bore the Chinese flag and Chinese characters.
It is unclear who installed the tarpaulins, which are possible reference to a “joke” by
President Rodrigo Duterte that the country can be a province of the Asian giant.
“He (Xi Jinping) is a man of honor. They can even make us ‘Philippines, province of
China,’ we will even avail of services for free,” Duterte said in apparent jest before an
audience of Chinese-Filipino business leaders earlier in 2018. “If China were a woman, I’d
woo her.”…
In a Palace briefing, presidential spokesperson Harry Roque said enemies of the
government are behind the tarpaulins.

158 Richard Javad Heydarian, “United Front Mounts Against Duterte’s China Policy,” Asia Times, July 12, 2018.
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A report on ANC said that the Metro Manila Development Authority already took the
banners down.
The tarpaulins sparked outrage among social media users.159
A July 17, 2018, press report stated the following:
Protesters held a rally in front of the Chinese Consulate [in San Francisco] before
proceeding to the Philippine Consulate downtown, demanding that China “get out of
Philippine territory in the West Philippine Sea.” The protest was timed with others in Los
Angeles and Vancouver on the second anniversary of the UN’s Permanent Court of
Arbitration ruling that China had no right to the territory it was claiming.
Filipino American Human Rights Advocates (FAHRA) in a statement celebrated the
court’s finding that “China’s historical claim of the “nine-dash line” [is] illegal and without
basis.”
“China continues to violate the UN’s decision with the backing of its puppet Philippine
government headed by President Duterte, who is deceived by the ‘build, build, build’
economic push while China establishes a ‘steal, steal, steal’ approach to islands and
territories belonging to the Exclusive Economic Zone (EEZ) of the Philippines as
determined by UN,” the statement lamented.
FAHRA also found it unacceptable that Filipino fishermen must now ask permission to
fish in the Philippine waters from “a Chinese master.”
“Duterte is beholden to the $15-billion loan with monstrous interest rate and China’s
investments in Boracay and Marawi, at the expense of Philippine sovereignty,” FAHRA
claimed. “This is not to mention that China remains to be the premier supplier of illegal
drugs to the country through traders that include the son, Paolo Duterte, with his P6 billion
shabu shipment to Davao,” it further charged.
The group demanded that “China abide by the UN International Tribunal Court’s decision
two years ago, to honor the full sovereignty of the Philippines over all territories at the
Exclusive Economic Zone (EEZ) including the West Philippine Sea and the dismantling of
the nuclear missiles and all military facilities installed by the Chinese government at the
Spratly islands meant to coerce the Filipinos and all peace-loving people of Southeast Asia
who clamor for equal respect and equal sovereignty in the area” among others.160

159 Banners Welcome Visitors to ‘Philippines, Province of China,’” Philstar, July 12, 2018.
160 Jun Nucum, “’China Out of West PH Sea’ Protests Mark 2nd Year of Int’l Court Ruling,” Philippine Daily Inquirer,
July 17, 2018.
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Appendix E. China’s Approach to Maritime
Disputes in SCS and ECS
This appendix presents additional background information on China’s approach to the maritime
disputes in the SCS and ECS.161
Island Building and Base Construction
DOD stated in 2017 that
In 2016, China focused its main effort on infrastructure construction at its outposts on the
Spratly Islands. Although its land reclamation and artificial islands do not strengthen
China’s territorial claims as a legal matter or create any new territorial sea entitlements,
China will be able to use its reclaimed features as persistent civil-military bases to enhance
its presence in the South China Sea and improve China’s ability to control the features and
nearby maritime space. China reached milestones of landing civilian aircraft on its airfields
on Fiery Cross Reef, Subi Reef, and Mischief Reef for the first time in 2016, as well as
landing a military transport aircraft on Fiery Cross Reef to evacuate injured personnel....
China’s Spratly Islands outpost expansion effort is currently focused on building out the
land-based capabilities of its three largest outposts—Fiery Cross, Subi, and Mischief
Reefs—after completion of its four smaller outposts early in 2016. No substantial land has
been reclaimed at any of the outposts since China ended its artificial island creation in the
Spratly Islands in late 2015 after adding over 3,200 acres of land to the seven features it
occupies in the Spratlys. Major construction features at the largest outposts include new
airfields—all with runways at least 8,800 feet in length—large port facilities, and water
and fuel storage. As of late 2016, China was constructing 24 fighter-sized hangars, fixed-
weapons positions, barracks, administration buildings, and communication facilities at
each of the three outposts. Once all these facilities are complete, China will have the
capacity to house up to three regiments of fighters in the Spratly Islands.
China has completed shore-based infrastructure on its four smallest outposts in the Spratly
Islands: Johnson, Gaven, Hughes, and Cuarteron Reefs. Since early 2016, China has
installed fixed, land-based naval guns on each outpost and improved communications
infrastructure.
The Chinese Government has stated that 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 the Chinese Government 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
on its Spratly outposts 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 the range of capabilities
available to China, and reduce the time required to deploy them....

161 For additional discussions of China’s approach to maritime disputes in the SCS and ECS, see Anders Corr, “China’s
Technological and Strategic Innovations in the South China Sea,” Journal of Political Risk, March 2019 (posted March
21, 2019); and James Holmes, “Inside China’s ‘People’s War’ Plan for the South China Sea,” National Interest,
November 23, 2019.
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China’s construction in the Spratly Islands demonstrates China’s capacity—and a
newfound willingness to exercise that capacity—to strengthen China’s control over
disputed areas, enhance China’s presence, and challenge other claimants....
In 2016, China built reinforced hangars on several of its Spratly Island outposts in the South
China Sea. These hangars could support up to 24 fighters or any other type of PLA aircraft
participating in force projection operations.162
In April, May, and June 2018, it was reported that China has landed aircraft and moved electronic
jamming equipment, surface-to-air missiles, and anti-ship missile systems to its newly built
facilities in the SCS.163 In July 2018, it was reported that “China is quietly testing electronic
warfare assets recently installed at fortified outposts in the South China Sea….”164 Also in July
2018, Chinese state media announced that a Chinese search and rescue ship had been stationed at
Subi Reef—the first time that such a ship had been permanently stationed by China at one of its
occupied sites in the Spratly Islands.165
For additional discussion of China’s island-building 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.

162 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2017, May 15, 2017, pp. 9-10, 12, 40, 54. See also the following posts from the Asia Maritime
Transparency Initiative (a project of the Center for Strategic and International Studies [CSIS]): “Exercises Bring New
Weapons to the Paracels” (May 24, 2018); “China Lands First Bomber on South China Sea Island” (May 18, 2018);
“An Accounting of China’s Deployments to the Spratly Islands” (May 9, 2018); “Comparing Aerial and Satellite
Images of China’s Spratly Outposts” (February 16); “A Constructive Year for Chinese Base Building” (December 14,
2017); “UPDATE: China’s Continuing Reclamation in the Paracels” (August 9, 2018); “UPDATED: China’s Big
Three Near Completion” (June 29, 2017); “A Look at China’s SAM Shelters in the Spratlys” (February 23, 2017);
“China’s New Spratly Island Defenses” (December 13, 2016); “Build It and They Will Come” (August 1, 2016);
“Another Piece of the Puzzle” (February 22, 2016). See also Greg Torode, “Concrete and Coral: Beijing’s South China
Sea Building Boom Fuels Concerns,” Reuters, May 23, 2018; Jin Wu, Simon Scarr, and Weiyi Cai, “Concrete and
Coral: Tracking Expansion in the South China Sea,” Reuters, May 24, 2018; Sofia Lotto Persio, “China is Building
Towns in the South China Sea That Could House Thousands of Marines,” Newsweek, May 24, 2018.
163 See CRS Report R44072, Chinese Land Reclamation in the South China Sea: Implications and Policy Options, by
Ben Dolven et al. See also Alex Lockie, “China Has Jamming Equipment in the South China Sea—and the US May
‘Not Look Kindly on It,’” Business Insider, April 18, 2018; Amanda Macias, “China Quietly Installed Defensive
Missile Systems on Strategic Spratly Islands in Hotly Contested South China Sea,” CNBC, May 2, 2018; Reuters Staff,
“China Installs Cruise Missiles on South China Sea Outposts: CNBC,” Reuters, May 2, 2018; Asia Times Staff, “China
‘Crosses Threshold’ with Missiles at South China Sea Outposts,” Asia Times, May 4, 2018; Mike Yeo, “How Far Can
China’s Long-Range Missiles Reach in the South China Sea?” Defense News, May 4, 2018; Richard Javad Heydarian,
“Short of War, China Now Controls South China Sea,” Asia Times, May 8, 2018; “An Accounting of China’s
Deployments to the Spratly Islands,” Asia Maritime Transparency Initiative (CSIS), May 9, 2018; “China Has Put
Missiles on Islands in the South China Sea,” Economist, May 10, 2018; Malcolm David, “China’s Strategic Strait in the
South China Sea (Part 1),” The Strategist, May 21, 2018; Steven Stashwick, “China’s New Missiles in the Sptratlys
May be a Turning Point,” China Focus, June 13, 2018; Bill Gertz, “China Adds Advanced Missiles to South China Sea
Islands,” Washington Free Beacon, June 14, 2018; Paul McCleary, “China Has Built ‘Great Wall of SAMs’ In Pacific:
US Adm. Davidson,” Breaking Defense, November 17, 2018.
164 Amanda Macias, “China Is Quietly Conducting Electronic Warfare Tests in the South China Sea,” CNBC, July 5,
2018.
165 Jesse Johnson, “In First, China Permanently Stations Search-and-Rescue Vessel in South China Sea’s Spratly
Chain,” Japan Times, July 29, 2018.
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Use of Coast Guard Ships and Maritime Militia
Coast Guard Ships
DOD states that the China Coast Guard (CCG) is the world’s largest coast guard.166 It is much
larger than the coast guard of any country in the region, and it has increased substantially in size
in recent years through the addition of many newly built ships. China makes regular use of CCG
ships to assert and defend its maritime claims, particularly in the ECS, with Chinese navy ships
sometimes available over the horizon as backup forces.167 The Defense Intelligence Agency
(DIA) states the following:
Under Chinese law, maritime sovereignty is a domestic law enforcement issue under the
purview of the CCG. Beijing also prefers to use CCG ships for assertive actions in disputed
waters to reduce the risk of escalation and to portray itself more benignly to an international
audience. For situations that Beijing perceives carry a heightened risk of escalation, it often
deploys PLAN combatants in close proximity for rapid intervention if necessary. China
also relies on the PAFMM—a paramilitary force of fishing boats—for sovereignty
enforcement actions….
China primarily uses civilian maritime law enforcement agencies in maritime disputes,
employing the PLAN [i.e., China’s navy] in a protective capacity in case of escalation.
The CCG has rapidly increased and modernized its forces, improving China’s ability to
enforce its maritime claims. Since 2010, the CCG’s large patrol ship fleet (more than 1,000
tons) has more than doubled in size from about 60 to more than 130 ships, making it by far
the largest coast guard force in the world and increasing its capacity to conduct extended
offshore operations in a number of disputed areas simultaneously. Furthermore, the newer
ships are substantially larger and more capable than the older ships, and the majority are
equipped with helicopter facilities, high-capacity water cannons, and guns ranging from
30-mm to 76-mm. Among these ships, a number are capable of long-distance, long-
endurance out-of-area operations. In addition, the CCG operates more than 70 fast patrol
combatants ([each displacing] more than 500 tons), which can be used for limited offshore
operations, and more than 400 coastal patrol craft (as well as about 1,000 inshore and
riverine patrol boats). By the end of the decade, the CCG is expected to add up to 30 patrol
ships and patrol combatants before the construction program levels off.168
In March 2018, China announced that control of the CCG would be transferred from the civilian
State Oceanic Administration to the Central Military Commission.169 The transfer occurred on
July 1, 2018.170 On May 22, 2018, it was reported that China’s navy and the CCG had conducted

166 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2018, p. 71.
167 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.
168 Defense Intelligence Agency, China Military Power, Modernizing a Force to Fight and Win, 2019, pp. 66, 78. A
similar passage appears in Department of Defense, Annual Report to Congress [on] Military and Security
Developments Involving the People’s Republic of China 2018, pp. 71-72.
169 See, for example, David Tweed, “China’s Military Handed Control of the Country’s Coast Guard,” Bloomberg,
March 26, 2018.
170 See, for example, Global Times, “China’s Military to Lead Coast Guard to Better Defend Sovereignty,” People’s
Daily Online, June 25, 2018.
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their first joint patrols in disputed waters off the Paracel Islands in the SCS, and had expelled at
least 10 foreign fishing vessels from those waters.171
Maritime Militia
China also uses the People’s Armed Forces Maritime Militia (PAFMM)—a force that essentially
consists of fishing ships with armed crew members—to defend its maritime claims. In the view of
some observers, the PAFMM—even more than China’s navy or coast guard—is the leading
component of China’s maritime forces for asserting its maritime claims, particularly in the SCS.
U.S. analysts in recent years have paid increasing attention to the role of the PAFMM as a key
tool for implementing China’s salami-slicing strategy, and have urged U.S. policymakers to focus
on the capabilities and actions of the PAFMM.172

171 Catherine Wong, “China’s Navy and Coastguard Stage First Joint Patrols Near Disputed South China Sea Islands as
‘Warning to Vietnam,’” South China Morning Post, May 22, 2018. For additional discussion of China’s coast guard,
see Andrew S. Erickson, Joshua Hickey, and Henry Holst, “Surging Second Sea Force: China’s Maritime Law-
Enforcement Forces, Capabilities, and Future in the Gray Zone and Beyond,” Naval War College Review, Spring 2019;
Teddy Ng and Laura Zhou, “China Coast Guard Heads to Front Line to Enforce Beijing’s South China Sea Claims,”
South China Morning Post, February 9, 2019; Ying Yu Lin, “Changes in China’s Coast Guard,” Diplomat, January 30,
2019.
172 For additional discussion of the PAFMM, see, for example, Gregory Poling, “China’s Hidden Navy,” Foreign
Policy, June 25, 2019; Mike Yeo, “Testing the Waters: China’s Maritime Militia Challenges Foreign Forces at Sea,”
Defense News, May 31, 2019; Laura Zhou, “Beijing’s Blurred Lines between Military and Non-Military Shipping in
South China Sea Could Raise Risk of Flashpoint,” South China Morning Post, May 5, 2019; Andrew S. Erickson,
“Fact Sheet: The People’s Armed Forces Maritime Militia (PAFMM),” April 29, 2019, Andrewerickson.com; Jonathan
Manthorpe, “Beijing’s Maritime Militia, the Scourge of South China Sea,” Asia Times, April 27, 2019; Dmitry Filipoff,
“Andrew S. Erickson and Ryan D. Martinson Discuss China’s Maritime Gray Zone Operations,” Center for
International Maritime Security (CIMSEC), March 11, 2019; Jamie Seidel, “China’s Latest Island Grab: Fishing
‘Militia’ Makes Move on Sandbars around Philippines’ Thitu Island,” News.com.au, March 5, 2019; Gregory Poling,
“Illuminating the South China Sea’s Dark Fishing Fleets,” Stephenson Ocean Security Project (Center for Strategic and
International Studies), January 9, 2019; Andrew S. Erickson, “Shining a Spotlight: Revealing China’s Maritime Militia
to Deter its Use,” National Interest, November 25, 2018; Todd Crowell and Andrew Salmon, “Chinese Fisherman
Wage Hybrid ‘People’s War’ on Asian Seas,” Asia Times, September 6, 2018; Andrew S. Erickson, “Exposed:
Pentagon Report Spotlights China’s Maritime Militia,” National Interest, August 20, 2018; Jonathan Odom, “China’s
Maritime Militia,” Straits Times, June 16, 2018; Andrew S. Erickson, “Understanding China’s Third Sea Force: The
Maritime Militia,” Fairbank Center, September 8, 2017; Andrew Erickson, “New Pentagon China Report Highlights
the Rise of Beijing’s Maritime Militia,” National Interest, June 7, 2017; Ryan Pickrell, “New Pentagon Report Finally
Drags China’s Secret Sea Weapon Out Of The Shadows,” Daily Caller, June 7, 2017; Conor M. Kennedy and Andrew
S. Erickson, “Hainan’s Maritime Militia: All Hands on Deck for Sovereignty Pt. 3,” Center for International Maritime
Security, April 26, 2017; Conor M. Kennedy and Andrew S. Erickson, “Hainan’s Maritime Militia: Development
Challenges and Opportunities, Pt. 2” Center for International Maritime Security, April 10, 2017; Andrew Erickson,
“Hainan’s Maritime Militia: China Builds A Standing Vanguard, Pt. 1,” Center for International Maritime Security,
March 25, 2017; Conor M. Kennedy and Andrew S. Erickson, China’s Third Sea Force, The People’s Armed Forces
Maritime Militia: Tethered to the PLA, China Maritime Report No. 1, China Maritime Studies Institute, U.S. Naval
War College, Newport, RI, March 2017, 22 pp.; Michael Peck, “‘Little Blue Sailors’: Maritime Hybrid Warfare Is
Coming (In the South China Sea and Beyond),” National Interest, December 18, 2016; Peter Brookes, “Take Note of
China’s Non-Navy Maritime Force,” The Hill, December 13, 2016; Christopher P. Cavas, “China’s Maritime Militia a
Growing Concern,” Defense News, November 21, 2016; Christopher P. Cavas, “China’s Maritime Militia—Time to
Call Them Out?” Defense News, September 18, 2016; Conor M. Kennedy and Andrew S. Erickson, “Riding A New
Wave of Professionalization and Militarization: Sansha City’s Maritime Militia,” Center for International Maritime
Security, September 1, 2016; John Grady, “Experts: China Continues Using Fishing Fleets for Naval Presence
Operations,” USNI News, August 17, 2016; David Axe, “China Launches A Stealth Invasion in the South China Sea,”
Daily Beast, August 9, 2016; Andrew S. Erickson and Conor M. Kennedy, “Countering China’s Third Sea Force:
Unmask Maritime Militia Before They’re Used Again,” National Interest, July 6, 2016; Andrew S. Erickson and Conor
M. Kennedy, “China’s Maritime Militia, What It Is and How to Deal With It,” Foreign Affairs, June 23, 2016.
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DOD states that “the PAFMM is the only government-sanctioned maritime militia in the world,”
and that it “has organizational ties to, and is sometimes directed by, China’s armed forces.”173
DIA states that
The PAFMM is a subset of China’s national militia, an armed reserve force of civilians
available for mobilization to perform basic support duties. Militia units organize around
towns, villages, urban subdistricts, and enterprises, and they vary widely from one location
to another. The composition and mission of each unit reflects local conditions and
personnel skills. In the South China Sea, the PAFMM plays a major role in coercive
activities to achieve China’s political goals without fighting, part of broader Chinese
military doctrine that states that confrontational operations short of war can be an effective
means of accomplishing political objectives.
A large number of PAFMM vessels train with and support the PLA and CCG in tasks such
as safeguarding maritime claims, protecting fisheries, and providing logistic support,
search and rescue (SAR), and surveillance and reconnaissance. The Chinese government
subsidizes local and provincial commercial organizations to operate militia ships to
perform “official” missions on an ad hoc basis outside their regular commercial roles. The
PAFMM has played a noteworthy role in a number of military campaigns and coercive
incidents over the years, including the harassment of Vietnamese survey ships in 2011, a
standoff with the Philippines at Scarborough Reef in 2012, and a standoff involving a
Chinese oil rig in 2014. In the past, the PAFMM rented fishing boats from companies or
individual fisherman, but it appears that China is building a state-owned fishing fleet for
its maritime militia force in the South China Sea. Hainan Province, adjacent to the South
China Sea, ordered the construction of 84 large militia fishing boats with reinforced hulls
and ammunition storage for Sansha City, and the militia took delivery by the end of
2016.174
Apparent Narrow Definition of “Freedom of Navigation”
An August 12, 2015, press report states the following (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.”175

173 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2018, p. 71.
174 Defense Intelligence Agency, China Military Power, Modernizing a Force to Fight and Win, 2019, p. 79. A similar
passage appears in Department of Defense, Annual Report to Congress [on] Military and Security Developments
Involving the People’s Republic of China 2018, p. 72.
175 Jim Gomez, “Chinese Diplomat Outlines Limits to Freedom of Navigation,” Military Times, August 12, 2015.
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A July 19, 2016, press report states the following:
A senior Chinese admiral has rejected freedom of navigation for military ships, despite
views held by the United States and most other nations that such access is codified by
international law.
The comments by Adm. Sun Jianguo, deputy chief of China’s joint staff, come at a time
when the U.S. Navy is particularly busy operating in the South China Sea, amid tensions
over sea and territorial rights between China and many of its neighbors in the Asia-Pacific
region.
“When has freedom of navigation in the South China Sea ever been affected? It has not,
whether in the past or now, and in the future there won’t be a problem as long as nobody
plays tricks,” Sun said at a closed forum in Beijing on Saturday, according to a transcript
obtained by Reuters.
“But China consistently opposes so-called military freedom of navigation, which brings
with it a military threat and which challenges and disrespects the international law of the
sea,” Sun said.176
A March 4, 2017, press report states the following:
Wang Wenfeng, a US affairs expert at the China Institute of Contemporary International
Relations, said Beijing and Washington obviously had different definitions of what
constituted freedom of navigation.
“While the US insists they have the right to send warships to the disputed waters in the
South China Sea, Beijing has always insisted that freedom of navigation should not cover
military ships,” he said.177
A February 22, 2018, press report states the following:
Hundreds of government officials, experts and scholars from all over the world conducted
in-depth discussions of various security threats under the new international security
situation at the 54th Munich Security Conference (MSC) from Feb. 16 to 18, 2018.
Experts from the Chinese delegation at the three-day event were interviewed by reporters
on hot topics such as the South China Sea issue and they refuted some countries’
misinterpretation of the relevant international law.
The conference included a panel discussion on the South China Sea issue, which China and
the Association of Southeast Asian Nations (ASEAN) countries have been committed to
properly solving since the signing of the draft South China Sea code of conduct.
Senior Colonel Zhou Bo, director of the Security Cooperation Center of the International
Military Cooperation Office of the Chinese Ministry of National Defense, explained how
some countries’ have misinterpreted the international law.
“First of all, we must abide by the United Nations Convention on the Law of the Sea
(UNCLOS),“ Zhou said. “But the problem now is that some countries unilaterally and

176 Erik Slavin, “Chinese Admiral Contests Freedom of Navigation in South China Sea,” Stars and Stripes, July 19,
2016.
177 Shi Jiangtao, “Future of South China Sea Disputes Depends on Washington, Says China’s Legislature
Spokeswoman,” South China Morning Post, March 4, 2017. See also Erik Slavin, “Chinese Legal Draft Could Pose
Challenge for [U.S.] Navy in South China Sea,” Stars and Stripes, February 17, 2017; Ben Blanchard, “China
Considering Making Foreign Submersibles Travel on Surface,” Reuters, February 17, 2017; “Draft Maritime law
Revisions Say China May Bar Foreign Ships from Passing Through Its Waters,” Global Times, February 16, 2017.
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wrongly interpreted the ‘freedom of navigation’ of the UNCLOS as the ‘freedom of
military operations’, which is not the principle set by the UNCLOS,” Zhou noted.178
A June 27, 2018, opinion piece in a British newspaper by China’s ambassador to the UK stated
that
freedom of navigation is not an absolute freedom to sail at will. The US Freedom of
Navigation Program should not be confused with freedom of navigation that is universally
recognised under international law. The former is an excuse to throw America’s weight
about wherever it wants. It is a distortion and a downright abuse of international law into
the “freedom to run amok”.
Second, is there any problem with freedom of navigation in the South China Sea? The
reality is that more than 100,000 merchant ships pass through these waters every year and
none has ever run into any difficulty with freedom of navigation....
The South China Sea is calm and the region is in harmony. The so-called “safeguarding
freedom of navigation” issue is a bogus argument. The reason for hyping it up could be
either an excuse to get gunboats into the region to make trouble, or a premeditated
intervention in the affairs of the South China Sea, instigation of discord among the parties
involved and impairment of regional stability….
China respects and supports freedom of navigation in the South China Sea according to
international law. But freedom of navigation is not the freedom to run amok. For those
from outside the region who are flexing their muscles in the South China Sea, the advice
is this: if you really care about freedom of navigation, respect the efforts of China and
Asean countries to safeguard peace and stability, stop showing off your naval ships and
aircraft to “militarise” the region, and let the South China Sea be a sea of peace.179
A September 20, 2018, press report stated the following:
Chinese Ambassador to Britain Liu Xiaoming on Wednesday [September 19] said that the
freedom of navigation in the South China Sea has never been a problem, warning that no
one should underestimate China’s determination to uphold peace and stability in the
region….
Liu stressed that countries in the region have the confidence, capability and wisdom to deal
with the South China Sea issue properly and achieve enduring stability, development and
prosperity.
“Yet to everyone’s confusion, some big countries outside the region did not seem to
appreciate the peace and tranquility in the South China Sea,” he said. “They sent warships
and aircraft all the way to the South China Sea to create trouble.”
The senior diplomat said that under the excuse of so-called “freedom of navigation,” these
countries ignored the vast sea lane and chose to sail into the adjacent waters of China’s
islands and reefs to show off their military might.
“This was a serious infringement” of China’s sovereignty, he said. “It threatened China’s
security and put regional peace and stability in jeopardy.”

178 “Chinese Expert: Freedom of Navigation ≠ Freedom of Military Operations in South China Sea,” China Military
Online,” February 22, 2018.
179 Liu Xiaoming, “China Will Not Tolerate US Military Muscle-Flexing Off Our Shores,” Guardian (UK), June 27,
2018.
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Liu stressed that China has all along respected and upheld the freedom of navigation and
over-flight in the South China Sea in accordance with international law, including the
United Nations Convention on the Law of the Sea.
“Freedom of navigation is not a license to do whatever one wishes,” he said, noting that
freedom of navigation is not freedom to invade other countries’ territorial waters and
infringe upon other countries’ sovereignty.
“Such ‘freedom’ must be stopped,” Liu noted. “Otherwise the South China Sea will never
be tranquil.”180
A May 7, 2019, press report stated the following:
“The US’ excuse of freedom of navigation does not stand because international law never
allowed US warships to freely enter another country’s territorial waters,” Zhang Junshe, a
senior research fellow at the PLA Naval Military Studies Research Institute, told the Global
Times on Monday [May 6].181
A March 17, 2020, press report in China’s state-controlled media stated
The US side is using “freedom of navigation” as an excuse to repeatedly enter the South
China Sea to flex its muscles and cause trouble, which are acts of hegemony that violate
international law, threatening peace and stability in the region, People's Liberation Army
(PLA) Southern Theater Command spokesperson Li Huamin said after the US naval
activities on March 10, noting that the US warship was expelled by Chinese naval and
aerial forces.”182
In contrast to China’s narrow definition, the U.S./Western definition of freedom of navigation is
much broader, encompassing operations of various types by both commercial and military ships
and aircraft in international waters and airspace. As discussed earlier in this report, an alternative
term for referring to the U.S./Western definition of freedom of navigation is freedom of the seas,
meaning “all of the rights, freedoms, and lawful uses of the sea and airspace, including for
military ships and aircraft, guaranteed to all nations under international law.”183 When Chinese
officials state that China supports freedom of navigation, China is referring to its own narrow
definition of the term, and is likely not expressing agreement with or support for the U.S./Western
definition of the term.184
Preference for Treating Territorial Disputes on Bilateral Basis
China prefers to discuss maritime territorial disputes with other regional 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

180 “No One Should Underestimate China’s Determination to Uphold Peace in South China Sea: Chinese Ambassador,”
Xinhuanet, September 20, 2018.
181 Leng Shumei and Liu Xuanzun (Global Times), “China Warns US Ships to Leave Sea,” People’s Daily Online, May
7, 2019.
182 Liu Xuanzun, “US Intrusions in S.China Sea Can Be Stopped by Electromagnetic Weapons: Experts,” Global
Times, March 17, 2020. As shown in Table 2, a U.S. Navy ship conducted an FON operation near the Paracel Islands
in the SCS on March 10, 2020.
183 U.S. Department of Defense (DoD) Freedom of Navigation (FON) Report for Fiscal Year (FY) 2017, December 13,
2017, p. 2.
184 See also Tuan N. Pham, “Chinese Double Standards in the Maritime Doman,” The Diplomat, August 19, 2017;
Mark J. Valencia, “The US-China Maritime Surveillance Debate,” The Diplomat, August 4, 2017.
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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 declaration of conduct DOC and in
negotiations with the ASEAN states on the follow-on binding code of conduct (COC) [see
Appendix C] represents a departure from this general preference.) 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.185
Map of 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 E-1).
The area inside the nine line segments far exceeds what is claimable as territorial waters under
customary international law of the sea as reflected in UNCLOS, and, as shown in Figure E-2,
includes waters that are within the claimable EEZs (and in some places are quite near the coasts)
of the Philippines, Malaysia, Brunei, and Vietnam. As noted earlier in this report, the U.S.
position is that the nine-dash line is “preposterous.”186
The map of the nine-dash line, also called the U-shaped line or the cow tongue,187 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.188
In a document submitted to the United Nations on May 7, 2009, which included the map shown
in Figure E-1 as an attachment, China stated the following:
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.189

185 See, for example, Donald K. Emmerson, “China Challenges Philippines in the South China Sea,” East Asia Forum,
March 18, 2014.
186 Department of State, A Free and Open Indo-Pacific, Advancing a Shared Vision, November 4, 2019, states on page
23: “PRC maritime claims in the South China Sea, exemplified by the preposterous ‘nine-dash line,’ are unfounded,
unlawful, and unreasonable. These claims, which are without legal, historic, or geographic merit, impose real costs on
other countries. Through repeated provocative actions to assert the nine-dash line, Beijing is inhibiting ASEAN
members from accessing over $2.5 trillion in recoverable energy reserves, while contributing to instability and the risk
of conflict.”
187 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 E-1) show each line segment as being dashed.
188 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/.
189 Communication from China to the United Nations dated May 7, 2009, English version, accessed on August 30,
2012, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm.
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Figure E-1. Map of the Nine-Dash Line
Example submitted by China to the United Nations in 2009

Source: Communication from China to the United Nations dated May 7, 2009, English version, accessed on
August 30, 2012, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_vnm_37_2009.htm.
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Figure E-2. EEZs Overlapping Zone Enclosed by Map of Nine-Dash Line

Source: Source: Eurasia Review, September 10, 2012.
Notes: (1) The red line shows the area that would be enclosed by connecting the line segments in the map of
the nine-dash line. Although the label on this map states that the waters inside the red line are “China’s claimed
territorial waters,” China has maintained ambiguity over whether it is claiming ful sovereignty over the entire
area enclosed by the nine line segments. (2) The EEZs shown on the map do not represent the totality of
maritime territorial claims by countries in the region. Vietnam, to cite one example, claims all of the Spratly
Islands, even though most or all of the islands are outside the EEZ that Vietnam derives from its mainland coast.
The map 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.190 The exact positions of the dashes have also varied a bit over time.
China has maintained 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.191 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,

190 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.
191 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.
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specifies that China claims sovereignty over all the island groups inside the nine line segments.192
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.193
An April 30, 2018, blog post states the following:
In what is likely a new bid to reinforce and even expand China’s sweeping territorial claims
in the South China Sea, a group of Chinese scholars recently published a “New Map of the
People’s Republic of China.”
The alleged political national map, reportedly first published in April 1951 but only
“discovered” through a recent national archival investigation, could give new clarity to the
precise extent of China’s official claims in the disputed waters.
Instead of dotted lines, as reflected in China’s U-shaped Nine-Dash Line claim to nearly
all of the South China Sea, the newly discovered map provides a solid “continuous national
boundary line and administrative region line.”
The Chinese researchers claim that through analysis of historical maps, the 1951 solid-line
map “proves” beyond dispute that the “U-boundary line is the border of China’s territorial
sea” in the South China Sea.
They also claim that the solid administrative line overlaying the U-boundary “definitely
indicated that the sovereignty of the sea” enclosed within the U-boundary “belonged to
China.”
The study, edited by the Guanghua and Geosciences Club and published by SDX Joint
Publishing Company, has not been formally endorsed by the Chinese government.194

192 Peter Dutton, “Three Disputes and Three Objectives, China and the South China Sea,” Naval War College Review,
Autumn 2011: 45, which states the following: “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.
193 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.)
194 Richard Javad Heydarian, “China's ‘New' Map Aims to Extend South China Sea Claims,” National Interest, April
30, 2018. A similar version was published in Asia Times on April 29, 2018.
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Comparison with U.S. Actions Toward Caribbean and
Gulf of Mexico
Some observers have compared China’s approach toward its near-seas region with the U.S.
approach toward the Caribbean and the Gulf of Mexico in the age of the Monroe Doctrine.195 It
can be noted, however, that there are significant differences between China’s approach to its near-
seas region and the U.S. approach—both in the 19th and 20th centuries and today—to the
Caribbean and the Gulf of Mexico. Unlike China in its approach to its near-seas region, the
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.196

195 See, for example, Robert D. Kaplan, “China’s Budding Ocean Empire,” The National Interest, June 5, 2014.
196 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.
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Appendix F. Assessments of China’s Strengthening
Position in SCS
This appendix provides additional information on assessment of China’s strengthening position in
the SCS.
One observer writes in a March 28, 2018, commentary piece that
as Beijing’s regional clout continues to grow, it can be hard for weaker nations to resist it,
even with these allies’ support. Barely three weeks after the [the U.S. aircraft carrier Carl]
Vinson’s visit [to Vietnam], the Vietnamese government bowed to Chinese pressure and
canceled a major oil drilling project in disputed South China waters.
It was yet another sign of the region’s rapidly shifting dynamics. For the last decade, the
United States and its Asian allies have been significantly bolstering their military activities
in the region with the explicit aim of pushing back against China. But Beijing’s strength
and dominance, along with its diplomatic, economic and military reach, continues to grow
dramatically....
Western military strategists worry that China will, in time, be able to block any activity in
the region by the United States and its allies. Already, satellite photos show China installing
sophisticated weapons on a range of newly-reclaimed islands where international law says
they simply should not be present. In any war, these and other new weapons that China is
acquiring could make it all but impossible for the U.S. Navy and other potential enemies
of China to operate in the area at all....
China’s increasing confidence in asserting control over the South China Sea has clearly
alarmed its neighbors, particularly the Philippines, Vietnam, Malaysia, Indonesia and
Brunei, all of whom have competing territorial claims over waters that China claims for
itself. But it also represents a major and quite deliberate challenge to the United States
which, as an ally to all these nations, has essentially staked its own credibility on the issue.
Over the last several years, it has become common practice for U.S. warships to sail
through nearby waters, pointedly refusing to acknowledge Chinese demands that they
register with its unilaterally-declared air and maritime “identification zones” (which the
United States and its allies do not recognize)....
None of this, however, addresses the seismic regional change produced by China’s island-
building strategy....
... China sees this confrontation as a test case for its ability to impose its will on the wider
region—and so far it is winning....
The United States remains the world’s preeminent military superpower, and there is little
doubt it could win a fight with China almost anywhere else in the world. In its own
backyard, however, Beijing is making it increasingly clear that it calls the shots. And for
now, there is little sign anyone in Washington—or anywhere else—has the appetite to
seriously challenge that assumption.197
An April 9, 2018, article from a Chinese media outlet states the following:
The situation in the South China Sea has been developing in favor of China, said Chinese
observers after media reported that China is conducting naval drills in the region, at the
same time as “three US carrier battle groups passed by” the area.

197 Peter Apps, “Commentary: How Beijing Is Winning in the South China Sea,” Reuters, March 28, 2018.
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“The regional strategic situation is tipping to China’s side in the South China Sea,
especially after China’s construction of islands and reefs,” Chen Xiangmiao, a research
fellow at the National Institute for the South China Sea, told the Global Times on Sunday.
China has strengthened its facilities in the region and conducted negotiations and
cooperation on the South China Sea, which have narrowed China’s gap in power with the
US, while gaining advantages over Japan and India, according to Chen.198
U.S. Navy Admiral Philip Davidson, in responses to advance policy questions from the Senate
Armed Services Committee for an April 17, 2018, hearing before the committee to consider
nominations, including Davidson’s nomination to become Commander, U.S. Pacific Command
(PACOM), stated the following in part (emphasis added):
With respect to their actions in the South China Sea and more broadly through the Belt and
Road Initiative, the Chinese are clearly executing deliberate and thoughtful force posture
initiatives. China claims that these reclaimed features and the Belt and Road Initiative
[BRI] will not be used for military means, but their words do not match their actions....
While Chinese air forces are not as advanced as those of the United States, they are rapidly
closing the gap through the development of new fourth and fifth generation fighters
(including carrier-based fighters), long range bombers, advanced UAVs, advanced anti-air
missiles, and long-distance strategic airlift. In line with the Chinese military’s broader
reforms, Chinese air forces are emphasizing joint operations and expanding their
operations, such as through more frequent long range bomber flights into the Western
Pacific and South China Sea. As a result of these technological and operational advances,
the Chinese air forces will pose an increasing risk not only to our air forces but also to our
naval forces, air bases and ground forces....
In the South China Sea, the PLA has constructed a variety of radar, electronic attack, and
defense capabilities on the disputed Spratly Islands, to include: Cuarteron Reef, Fiery Cross
Reef, Gaven Reef, Hughes Reef, Johnson Reef, Mischief Reef and Subi Reef. These
facilities significantly expand the real-time domain awareness, ISR, and jamming
capabilities of the PLA over a large portion of the South China Sea, presenting a substantial
challenge to U.S. military operations in this region....
China’s development of forward military bases in the South China Sea began in December
2013 when the first dredger arrived at Johnson Reef. Through 2015, China used dredging
efforts to build up these reefs and create manmade islands, destroying the reefs in the
process. Since then, China has constructed clear military facilities on the islands, with
several bases including hangars, barracks, underground fuel and water storage facilities,
and bunkers to house offense and defensive kinetic and non-kinetic systems. These actions
stand in direct contrast to the assertion that President Xi made in 2015 in the Rose Garden
when he commented that Beijing had no intent to militarize the South China Sea. Today
these forward operating bases appear complete. The only thing lacking are the deployed
forces.
Once occupied, China will be able to extend its influence thousands of miles to the south
and project power deep into Oceania. The PLA will be able to use these bases to challenge
U.S. presence in the region, and any forces deployed to the islands would easily overwhelm
the military forces of any other South China Sea-claimants. In short, China is now
capable of controlling the South China Sea in all scenarios short of war with the
United States....
Ultimately, BRI provides opportunities for China’s military to expand its global reach by
gaining access to foreign air and maritime port facilities. This reach will allow China’s
military to extend its striking and surveillance operations from the South China Sea to the

198 Global Times, “China Has Upper Hand in South China Sea: Expert,” China Military online, April 9, 2018.
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Gulf of Aden. Moreover, Beijing could leverage BRI projects to pressure nations to deny
U.S. forces basing, transit, or operational and logistical support, thereby making it more
challenging for the United States to preserve international orders and norms....
With respect to the Indo-Pacific region, specifically, I am concerned that some nations,
including China, assert their interests in ways that threaten the foundational standards for
the world’s oceans as reflected in the Law of the Sea Convention. This trend is most evident
off the coast of China and in the South China Sea where China’s policies and activities are
challenging the free and open international order in the air and maritime domains. China’s
attempts to restrict the rights, freedoms, and lawful uses of the sea available to naval and
air forces is inconsistent with customary international law and as President Reagan said in
the 1983 Statement on United States Oceans Policy, “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.”199
A May 8, 2018, press report states the following:
China’s neighbors and rivals fear that the Asian powerhouse is slowly but surely
establishing the foundation of an Air Defense Identification Zone (ADIZ) in one of the
world’s most important and busy waterways….
Boosting China’s missile defense system in the area would allow it to progressively restrict
the movement as well as squeeze the supply lines of smaller claimant states, all of which
maintain comparatively modest military capabilities to fortify their sea claims.”200
Another observer writes in a May 10, 2018, commentary piece that
All these developments [in the SCS], coupled with the lack of any concerted or robust
response from the United States and its allies and partners in the region, point to the
inevitable conclusion that the sovereignty dispute in the SCS has – irreversibly – become
a foregone conclusion. Three compelling reasons justify this assertion….
First, China sees the SCS issue as a security matter of paramount importance, according it
the status of a “core interest” – on par with resolution of the Taiwan question….
Second, the sovereignty of SCS waters is a foregone conclusion partly because of U.S.
ambivalence toward Chinese military encroachment….
Third, the implicit acquiescence of ASEAN [Association of Southeast Asian Nations]
states toward China’s moves in the SCS has strengthened its position that all features and
waters within the “nine-dashed line” belongs to Beijing….
The above three factors – Beijing’s sharpened focus on national security, lack of American
resolve to balance China in the SCS, and ASEAN’s prioritization of peace and stability
over sovereignty considerations – have contributed to the bleak state of affairs today….
From the realist perspective, as Beijing accrues naval dominance in the SCS, the rules
meant to regulate its behavior are likely to matter less and less—underscoring the
geopolitical truism that ‘might is right.’ While China foreswears the use of coercive force
on its Southeast Asian neighbors and may indeed have no offensive intentions today, it has
now placed itself in a position to do so in future.
In other words, while it had no capacity nor intent to threaten Southeast Asian states
previously, it has developed the requisite capabilities today.201

199 Advance Policy Questions for Admiral Philip Davidson, USN Expected Nominee for Commander, U.S. Pacific
Command, pp. 8. 16. 17. 18, 19, and 43. See also Hannah Beech, “China’s Sea Control Is a Done Deal, ‘Short of War
With the U.S.,” New York Times, September 20, 2018.
200 Richard Javad Heydarian, “Short of War, China Now Controls South China Sea,” Asia Times, May 8, 2018.
201 Jansen Tham, “Is the South China Sea Dispute a Foregone Conclusion?” The Diplomat, May 10, 2018.
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Another observer writes in a separate May 10, 2018, commentary piece that
the South China Sea is being increasingly dominated militarily by China at both its eastern
and western ends. This is what researchers at the US Naval War College meant when they
told the author that Chinese militarization activities in the region are an attempt to create
the equivalent of a “strategic strait” in the South China Sea. In other words, through the
more or less permanent deployment of Chinese military power at both extreme ends of the
South China Sea – Hainan and Woody Island in the west, and the new (and newly
militarized) artificial islands in the east – Beijing is seeking to transform the South China
Sea from an international SLOC into a Chinese-controlled waterway and a strategic
chokepoint for other countries….
This amalgamation of force means that China’s decades-long “creeping assertiveness” in
this particular body of water has become a full-blown offensive. What all this means is that
China is well on its way toward turning the South China Sea in a zone of anti-access/area
denial (A2/AD). This means keeping military competitors (particularly the US Navy) out
of the region, or seriously impeding their freedom of action inside it.202
A June 1, 2018, press report states the following:
Through its navy, coast guard, a loose collection of armed fishing vessels, and a network
of military bases built on artificial islands, Beijing has gained de facto control of the South
China Sea, a panel of Indo-Pacific security experts said Friday.
And the implications of that control—militarily, economically, diplomatically—are far-
reaching for the United States and its partners and allies in the region.
“Every vessel [sent on a freedom of navigation transit] is shadowed” by a Chinese vessel,
showing Beijing’s ability to respond quickly events in areas it considers its own, retired
Marine Lt. Gen. Wallace “Chip” Gregson said during an American Enterprise Institute
forum.203
Another observer writes in a June 5, 2018, commentary piece that
It’s over in the South China Sea. The United States just hasn’t figured it out yet….
It is past time for the United States to figure out what matters in its relationship with China,
and to make difficult choices about which values have to be defended, and which can be
compromised.204
A June 21, 2018, editorial states the following:
America’s defence secretary, James Mattis, promised “larger consequences” if China does
not change track [in the SCS]. Yet for now [Chinese President Xi Jinping], while blaming
America’s own “militarisation” as the source of tension, must feel he has accomplished
much. He has a chokehold on one of the world’s busiest shipping routes and is in a position
to make good on China’s claims to the sea’s oil, gas and fish. He has gained strategic depth
in any conflict over Taiwan. And, through the sheer fact of possession, he has underpinned
China’s fatuous historical claims to the South China Sea. To his people, Mr Xi can paint it
all as a return to the rightful order. Right now, it is not clear what the larger consequences
of that might be.205
Another observer writes in a July 17, 2018, commentary piece that

202 Richard A. Bitzinger, “Why Beijing is Militarizing the South China Sea,” Asia Times, May 10, 2018.
203 John Grady, “Panel: Chinese Navy, Maritime Militia Has Given Beijing De Facto Control of the South China Sea,”
USNI News, June 1, 2018.
204 Robert Farley, “The South China Sea Conundrum for the United States,” The Diplomat, June 5, 2018.
205 “China Has Militarised the South China Sea and Got Away with It,” Economist, June 21, 2018.
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Two years after an international tribunal rejected expansive Chinese claims to the South
China Sea, Beijing is consolidating control over the area and its resources. While the U.S.
defends the right to freedom of navigation, it has failed to support the rights of neighboring
countries under the tribunal’s ruling. As a result, Southeast Asian countries are bowing to
Beijing’s demands….
In late July 2017, Beijing threatened Vietnam with military action if it did not stop oil and
gas exploration in Vietnam’s exclusive economic zone, according to a report by the BBC’s
Bill Hayton. Hanoi stopped drilling. Earlier this year, Vietnam again attempted to drill, and
Beijing issued similar warnings….
Other countries, including the U.S., failed to express support for Vietnam or condemn
China’s threats. Beijing has also pressured Brunei, Malaysia and the Philippines to agree
to “joint development” in their exclusive economic zones—a term that suggests legitimate
overlapping claims.
Meanwhile China is accelerating its militarization of the South China Sea. In April, it
deployed antiship cruise missiles, surface-to-air missiles and electronic jammers to
artificial islands constructed on Fiery Cross Reef, Subi Reef and Mischief Reef. In May, it
landed long-range bombers on Woody Island.
The Trump administration’s failure to press Beijing to abide by the tribunal’s ruling is a
serious mistake. It undermines international law and upsets the balance of power in the
region. Countries have taken note that the tide in the South China Sea is in China’s favor,
and they are making their strategic calculations accordingly. This hurts U.S. interests in the
region.206
A January 2, 2020, press report states
The battle for the South China Sea is heating up. Vietnam. Malaysia. The Philippines. All
have drawn lines in the sandbars against China. But it may already be too late.
This past year, Vietnam stood its ground over the right to deploy an oil rig within its UN-
mandated waters. Malaysia complained publicly of interference by the Chinese coastguard.
The Philippines moved to secure its Scarborough Shoal islands. And, all the while, new
nations have been joining the Freedom of Navigation pushback over Beijing’s claims to
the South China Sea.
China’s aggressive military moves have forced members of the traditionally timid
Association of Southeastern Nations (ASEAN) to reassess their stance.
Many are already focused on modernising their armed forces, with defence spending in the
region doubling over the past 15 years. That spending is moving away from counter-
terrorism efforts towards higher-level conventional warfare.
But nations like Singapore, Malaysia and Thailand are beginning to realise they cannot
stand alone. September marked a seismic shift in the region’s thinking.
Ten Southeast Asian nations joined the United States Navy in five days of war-games.
While it involved only eight warships and four aircraft, it marked an unprecedented step
down the path towards regional unity.
But Chairman Xi Jinping’s bellicose assertion of his nine-dash-line South China Sea policy
is yet to be checked….
“The PRC is currently consolidating and normalising control of the SCS seized in 2015
following 20 years of hybrid warfare,” former ADF intelligence analyst Dr Mark Baily
warns in an essay published by the Australian Naval Institute.

206 Lynn Kuok, “China Is Winning in the South China Sea,” Wall Street Journal, July 17, 2018.
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“Their normalisation phase will include civilian settlement of the artificial military base-
islands, establishment of a ‘patriotic tourist industry’ and cynical insistence that the
artificial military base-islands it forcibly seized are sovereign territory and therefore
possess territorial seas and exclusive economic zones,” he wrote.
Their existence represents both a strategic and ideological victory for Beijing.
The island fortresses extend the range of combat aircraft, ships and missiles. They also act
as surveillance platforms over any shipping that passes through the South China Sea.
“China’s facilities have probably already reached a level of capability that no outside
combatant which enters the South China Sea, however covertly, can be completely
confident it is not being tracked,” says Professor James Goldrick of UNSW Canberra.
And there is danger in thinking of the island fortresses as China’s “great wall of sand”. It
entrenches Beijing’s goal of “regarding the waters that lie between them and the mainland
as Chinese territory”.
Whether or not these islands are unsinkable aircraft carriers or immovable targets is
irrelevant, Mr Goldrick says. “They’re a very public statement of China’s power under its
nationalist narrative of “reunifying a supposed ideal Chinese nation-state on equally
supposed ideal historical boundaries”….
As a result, Dr Baily says, regional nations must band together to block China’s next
expansionist ambition.
“While the danger has been recognised 15 years too late, initiatives such as the Indo-Pacific
Maritime co-ordination cell may help prevent losing strategic control of the Indian
Ocean.”207
A January 18, 2020, press report states
Before assuming his post as commander of the United States Indo-Pacific Command,
Admiral Philip S. Davidson issued a stark warning about Washington’s loosening grip in
the fiercely contested South China Sea.
“In short, China is now capable of controlling the South China Sea in all scenarios, short
of war with the United States,” Davidson said during a Senate confirmation hearing ahead
of his appointment as the top US military official in the region in May 2018.
For many analysts, the dire assessment was a long-overdue acknowledgement of their
concerns. Today, there is a growing sense it did not go far enough.
Washington’s strategic advantage in the waterway, which holds massive untapped oil and
gas reserves and through which about a third of global shipping passes, has diminished so
much, according to some experts, that it is powerless to prevent Beijing from restricting
access during peacetime and could struggle to gain the upper hand even in the event of an
outright conflict with Chinese forces.
China, which claims almost the entire waterway, has tipped the balance of power not just
through a massive build-up of its navy, they say, but also through the presence of a de facto
militia made up of ostensibly non-military vessels and an island-building campaign, the
profound strategic value of which has been lost on US policymakers.…
“The US has lost advantage throughout the spectrum of operations, from low-level
interaction against China’s maritime militia to higher-end conflict scenarios,” said James
Kraska, a former US Navy commander who lectures at the Naval War College.

207 Jamie Seidel, “‘We Are Losing Control’: China’s ‘Dangerous’ South China Sea Plan Almost Complete,”
News.com.au, January 2, 2020.
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“In other words, China has escalation dominance, because it has the power to deter any US
turn towards escalation. The US is outmatched in all of the scenarios.”…
“The biggest issue of control is maritime awareness,” said Oriana Mastro, an assistant
professor of security studies at Georgetown University.
“Before China can control the airspace and the water, they have to know what’s there. So
when you look at these islands and China says, ‘don’t worry it’s just a bunch of radars and
sensors’, for someone who is more military-minded, that is the foundation of control – to
be able to identify who is doing what and where.”…
Tong Zhao, a senior fellow at the Carnegie-Tsinghua Centre for Global Policy, said Beijing
had secured some “initial advantages” in a long-term competition that had only just begun.
“China’s capability to mass produce modern naval vessels and advanced coastguard ships
at a faster rate than anyone else also contributes to Beijing’s confidence that it can gradually
shift the military balance in this region to its favour,” said Zhao.
But Zhao stressed that China’s advantages were not set in stone, noting that Washington
had the resources to develop powerful capabilities such as new medium- and intermediate-
range missiles.
“With support from its allies, many of whom are increasingly worried about China’s
military domination, the United States can use such new capabilities to threaten the
operation of PLA military vessels and aircraft and thus seriously challenge any military
domination that China may seek to establish,” he said.
Other Chinese commentators have attempted to downplay Beijing’s rising dominance
altogether.
“The US, in particular, is well aware of the fact that China cannot control the South China
Sea,” said Hu Bo, director of the Centre for Maritime Strategy Studies at Peking University,
in an analysis published last year by the South China Sea Strategic Situation Probing
Initiative.
“Yet, it continues to direct domestic and international attention to such a possibility with
various policies,” Hu Bo added.
Despite US efforts to push back against Beijing, many analysts believe Washington has
been slow to take the prospect of Chinese control of the waterway seriously, in particular
neglecting the military and strategic significance of its artificial islands.
“These bases would likely prove quite useful in the event of armed conflict between the
United States and China,” said Zachary Haver, a Washington-based China analyst.
The mistaken perception that the islands were of little practical use and could be easily
destroyed during a conflict because of their isolated location had fuelled complacency, said
Greg Poling, a fellow with the Southeast Asia Programme at the Centre for Strategic and
International Studies.
“On day one of a conflict, they allow China to control the South China Sea,” said Poling,
who recently published a widely shared essay on the War on The Rocks website warning
against the “dangerously wrong” conventional wisdom about the man-made features.208
“Because of the islands, the Chinese are positioned in a way that lets them dominate the
South China Sea, and the Americans are not.
“The Americans would be in a position of fighting into the South China Sea.

208 The article referred to is Gregory B. Poling, “The Conventional Wisdom on China’s Island Bases Is Dangerously
Wrong,” War on the Rocks, January 10, 2020.
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“It is irresponsible of US planners to talk about these [islands] like they are just sitting
ducks or just target practice when they’re definitely not,” said Poling, while stressing his
view that China would seek to avoid any military conflict with the US.…
Many analysts believe US forces would struggle to destroy the outposts at an “acceptable
cost”, requiring massive numbers of missiles and bombs and the diversion of aircraft and
vessels needed to fight elsewhere, given that any major confrontation would be likely to
occur during a broader conflict in Northeast Asia, possibly involving Japan or Taiwan.
With the US lacking any nearby military facilities that could provide groundfire or
immediate air cover, its vessels would be vulnerable to China’s advanced missile arsenal,
which is widely considered among the most sophisticated on earth.
“The nature of warfare is changing rapidly with the development of drones, hypersonic
weapons and other new missile capabilities,” said Gordon Houlden, director of the China
Institute at the University of Alberta.
“It is not easy to foresee how these may affect the utility of fixed island bases. But already
[China’s] existing missile technology would make the approaches to the Western Pacific
dangerous for US aircraft carriers and other surface vessels.”…
James Holmes, a former US Navy officer who teaches at the Naval War College, said
policymakers had been caught off guard by China’s creeping control of the waterway due
to its use of ostensibly non-military vessels such as fishing boats as a de facto maritime
militia.
“In 2012, after Scarborough Shoal, I took to including a slide in my South China Sea
presentations depicting the fishing fleet as the vanguard of Chinese sea power. It was a
laugh line that year and for some time after,” said Holmes, referring to how China took
control of the shoal after a prolonged stand-off with the Philippines.
“You don’t get laughs any more. But by the time we got serious about the maritime militia
and [the Chinese coastguard], Beijing had accomplished most of what it wanted.”
Washington’s waning dominance has not gone unnoticed among Southeast Asian
claimants also at loggerheads with Beijing. Nearly half of the citizens of Asean (the
Association of Southeast Asian Nations) have little or no confidence in the US to provide
regional security, according to the State of Southeast Asia: 2020 Survey carried out by the
Singapore-based ISEAS-Yusof Ishak Institute.
More than three-quarters of respondents believed US engagement in the region had
declined under the Trump administration.
At the same time, 54 per cent said they would choose the US if forced to align themselves
with either Washington or Beijing, although responses varied considerably by country,
with majorities in Thailand, Indonesia, Cambodia, Brunei, Laos, Malaysia and Myanmar
favouring Beijing.
“While there are concerns that the US may be losing interest or disengaging from the
region, there’s also concern in the region about China’s behaviour and long-term strategic
intention,” said Collin Koh, a research fellow at the S. Rajaratnam School of International
Studies in Singapore. “Therefore regional countries still look forward to counting on the
US in the South China Sea.”
Even if the balance has tipped in favour of Beijing, policy analysts in the US and its allies
caution against fatalism.
“Beijing will not get its way through international custom as long as navies demonstrate
on behalf of freedom of the sea,” said Holmes, who argues the competition is not yet lost.
But although the Trump administration appears to have ramped up the frequency of
FONOPs, analysts caution against overplaying their impact.
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“There have been far too many wild statements from American politicians about the
FONOPS being a way to ‘push back’ against China,” said Bill Hayton, a South China Sea
expert at Chatham House in London. “FONOPS are a means of asserting, and thereby
maintaining, the law of the sea. They aren’t intended to diminish the power of China’s
artificial island bases.”
There is wide agreement that Washington’s ability to convince allies and partners to join
any effort to push back against Chinese control will be key to the future of the waterway.
Some suggest these efforts need to include establishing a regular US military presence in
Southeast Asia, which would alleviate operational limitations arising from its dependence
on far-flung bases in Japan, South Korea and Guam.
But such a base appears an unlikely prospect at present, as even Washington’s closest
Southeast Asian ally, the Philippines, moves closer to Beijing under populist leader
Rodrigo Duterte.
“Unlike the Middle East, in Southeast Asia the US can’t rely on local shore bases from
which to project power. Vietnam won’t allow it – despite the growing illusions about this
in Washington – and nor will the current Philippine government,” said Hayton.
“However, all Southeast Asian governments are concerned about China’s bullying
behaviour and will continue to facilitate the presence of the US and other navies in the
region as a counterbalance.”
In the absence of a major new military footprint in the region, Washington could settle for
boosting the fighting capabilities of its allies, or forging closer relations with non-
traditional partners, although this year’s US presidential election casts some uncertainty
over the direction of future policy.
“Korea, Australia and the Philippines and strategic partnerships with India and Vietnam
should all be leveraged, and the US should integrate and operate with their forces and
provide them with higher-end capabilities,” said the Naval War College’s Kraska.209
A January 27, 2020, press report stated
China’s recent activities in the South China Sea, which include bullying Vietnam and
Malaysia over ocean drilling and ramming Philippine fishing vessels near Scarborough
Shoals, top the list of Asian security concerns, a panel of experts said last week.
“China is in the driver’s seat” in the region since it has completed its island-building
campaign on coral reefs that can support the persistent deployment of coast guard and
paramilitary vessels to back up territorial claims, Gregory Poling, the director of the Center
for Strategic and International Studies Asia Maritime Transparency Initiative said [on
January 22] Wednesday during the CSIS Asia Forecast 2020 panel discussion.
“There are literally hundreds of players out there hopped up on nationalism,” Poling
adding, explaining it’s not just China who could spark a crisis growing out of a small
incident.
With Vietnam and Malaysia, there are incentives for China to pave over some of the
damage from previous disputes, Poling said. However, he added Beijing is currently taking
a more adversarial approach, buoyed by its recent success blocking oil and gas exploration
by Hanoi and Malaysia in disputed waters. China appears intent on “harassing in blocks
[of the ocean] where drilling has begun,” shutting down those operations, he said.

209 John Power, “Has the US Already Lost the Battle for the South China Sea?” South China Morning Post, January 18,
2020.
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The sheer size of the Chinese coast guard and its naval militia make this possible, Poling
said. “China has more boats,” and no Asian nation can match it when pressure like that is
applied “in a war of attrition.”
So far, the United States has remained on the sidelines of these disputes, taking a neutral
course of conducted freedom of navigation operations to maintain open passage for all
nations through contested waters.
If push came to shove, say between Beijing and Hanoi over mineral exploration and
drilling, Poling said the U.S. would make loud protests but would likely avoid a military
confrontation. If the dangerous incident involved the Philippines, a U.S. ally, the matter
would become more complicated for Washington.
Philippine President Rodrigo Duterte has at times tried distancing himself from the United
States. But the country’s military and the public strongly favor closer ties to the U.S. over
ties to China, Poling said. The U.S. denounced China’s actions during the previous
ramming incident, but Poling said It’s unclear what would happen if “another Philippine
fishing boat goes down” and “China called our bluff.”210

210 John Grady, “Panel: China Now Well Positioned to Bully Neighbors in South China Sea,” USNI News, January 27,
2020.
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Appendix G. U.S. Position on Operational Rights
in EEZs
This appendix presents additional background information on the U.S. position on the issue of
operational rights of military ships in the EEZs of other countries.
Operational Rights in EEZs
Regarding a coastal state’s rights within its EEZ, Scot Marciel, then-Deputy Assistant Secretary,
Bureau of East Asian and Pacific Affairs, stated the following as part of his prepared statement
for a July 15, 2009, hearing before the East Asian and Pacific Affairs Subcommittee of the Senate
Foreign Relations Committee:
I would now like to discuss recent incidents involving China and the activities of U.S.
vessels in international waters within that country’s Exclusive Economic Zone (EEZ). In
March 2009, the survey ship USNS Impeccable was conducting routine operations,
consistent with international law, in international waters in the South China Sea. Actions
taken by Chinese fishing vessels to harass the Impeccable put ships of both sides at risk,
interfered with freedom of navigation, and were inconsistent with the obligation for ships
at sea to show due regard for the safety of other ships. We immediately protested those
actions to the Chinese government, and urged that our differences be resolved through
established mechanisms for dialogue—not through ship-to-ship confrontations that put
sailors and vessels at risk.
Our concern over that incident centered on China’s conception of its legal authority over
other countries’ vessels operating in its Exclusive Economic Zone (EEZ) and the unsafe
way China sought to assert what it considers its maritime rights.
China’s view of its rights on this specific point is not supported by international law. We
have made that point clearly in discussions with the Chinese and underscored that U.S.
vessels will continue to operate lawfully in international waters as they have done in the
past.211
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.

211 [Statement of] Deputy Assistant Secretary Scot Marciel, Bureau of East Asian & Pacific Affairs, U.S. Department
of State, before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign Relations, United States
Senate, July 15, 2009, [hearing on] Maritime Issues and Sovereignty Disputes in East Asia, p. 5.
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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.212
As mentioned earlier in the report, 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 G-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 G-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.213
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)214 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

212 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.
213 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.)
214 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 the following:
During the Cold War it was hard for an American task force of any consequence to leave port without a
Soviet “AGI” in trail. These souped-up fishing trawlers would shadow U.S. task forces, joining up just
outside U.S. territorial waters. So ubiquitous were they that naval officers joked about assigning the AGI
a station in the formation, letting it follow along—as it would anyway—without obstructing fleet
operations.
AGIs were configured not just to cast nets, but to track ship movements, gather electronic intelligence,
and observe the tactics, techniques, and procedures by which American fleets transact business in great
waters.
(James R. Holmes, “China’s Small Stick Diplomacy,” The Diplomat, May 21, 2012, accessed October 3,
2012, at http://thediplomat.com/2012/05/21/chinas-small-stick-diplomacy/)
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likewise. He further proclaimed that all nations will continue to enjoy the high seas rights
and freedoms that are not resource related, including the freedoms of navigation and
overflight, in the Exclusive Economic Zone he established for the United States consistent
with the 1982 Convention.215
Figure G-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

215 Navy Office of Legislative Affairs email to CRS dated September 4, 2012.
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China’s decades-old position that similar foreign military activities in China’s EEZ are
unlawful.216
Figure G-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.217 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.

216 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s
Republic of China 2013, p. 39.
217 See, for example, Sam LaGrone, “China Sends Uninvited Spy Ship to RIMPAC,” USNI News, July 18, 2014;
William Cole, “Chinese Spy Ship Off Hawaii Keeps Track of RIMPAC,” Star Advertiser, July 18, 2014; Jeremy Page,
“Chinese Ship Spies on U.S.-Led Drills,” Wall Street Journal, July 19, 2014; Andrew S. Erickson and Emily de La
Bruyere, “Crashing Its Own Party: China’s Unusual Decision to Spy On Joint Naval Exercises,” Wall Street Journal,
China Real Time, July 19, 2014; Phil Stewart, “Update 1—China Sends Spy Ship Off Hawaii During U.S.-Led Drills,”
Reuters, July 21, 2014.
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“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.”218
One observer stated the following:
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 China
maritime legal specialist Isaac Kardon, China interprets the EEZ articles in the United

218 Sam LaGrone, “U.S. Pacific Commander: Chinese Spy Ship Off Hawaii Has An Upside,” USNI News, July 29,
2014. Material in brackets as in original. See also Paul McLeary, “PACOM Chief: US Not Worried About Chinese
Intel Ship off Hawaiian Coast,” (Defense News), July 29, 2014.
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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
clarification on Beijing’s legal interpretation, it will also be important to watch for
indications regarding the next SROs in China’s EEZ.219

219 Andrew S. Erickson and Emily de La Bruyere, “China’s RIMPAC Maritime-Surveillance Gambit,” The National
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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 the following: “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.”220

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.
220 Erik Slavin, “Chinese Ship Spies on Valiant Shield, And That’s OK With US,” Stars and Stripes, September 22,
2014.
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Appendix H. U.S. Freedom of Navigation (FON)
Program
This appendix provides additional background information on the U.S. Freedom of Navigation
(FON) program.
Overview
The State Department states that
U.S. forces engage in Freedom of Navigation (FON) operations to assert the principles of
international law and free passage in regions with unlawful maritime sovereignty claims.
FON operations involve units transiting disputed areas, thereby showing that the
international community has not accepted these unlawful claims. ISO coordinates State
Department clearance for FON operations.221
The State Department also states about the FON program that
U.S. policy since 1983 provides that 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 Law of the Sea (LOS) 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. The FON Program since 1979 has highlighted the navigation
provisions of the LOS Convention to further the recognition of the vital national need to
protect maritime rights throughout the world. The FON Program operates on a triple track,
involving not only diplomatic representations and operational assertions by U.S. military
units, but also bilateral and multilateral consultations with other governments in an effort
to promote maritime stability and consistency with international law, stressing the need for
and obligation of all States to adhere to the customary international law rules and practices
reflected in the LOS Convention.222
A DOD list of DOD Instructions 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.223
A website maintained by the Federation of American Scientists (FAS) listing Presidential
Decision Directives (PDDs) of the Clinton Administration for the years 1993-2000 states that
PDD-32 concerned the FON program. The listing suggests that PDD-32 was issued between
September 21, 1994 and February 17, 1995.224
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

221 State Department, “Military Exercises and Operational Coordination,” accessed August 13, 2019, at https://2009-
2017.state.gov/t/pm/iso/c21539.htm.
222 State Department, “Maritime Security and Navigation,” accessed August 13, 2019, at https://2009-2017.state.gov/e/
oes/ocns/opa/maritimesecurity/.
223 The list is posted at https://www.esd.whs.mil/Directives/issuances/dodi/.
224 The website is at http://www.fas.org/irp/offdocs/pdd/index.html.
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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.225
Legal Arguments Relating to FON Operations
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):
 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
a 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,

225 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 23-24.
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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.”226
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
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.227
Regarding the FON operation conducted on May 24, 2017, near Mischief Reef, the U.S. specialist
on international law of the sea quoted above states the following:
This was the first public notice of a freedom of navigation (FON) operation in the Trump
administration, and may prove the most significant yet for the United States because it
challenges not only China’s apparent claim of a territorial sea around Mischief Reef, but
in doing so questions China’s sovereignty over the land feature altogether....
The Pentagon said the U.S. warship did a simple military exercise while close to the
artificial island—executing a “man overboard” rescue drill. Such drills may not be

226 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.
227 See, for example, James Holmes, “No, China Doesn’t Want Confrontation in the South China Sea,” National
Interest, January 29, 2018; Joseph Bosco, “US FONOPs Actually Conceded Maritime Rights to China,” The Diplomat,
March 8, 2017; James Holmes, “America’s Latest South China Sea FONOP Did More Harm Than Good,” National
Interest, October 30, 2016. For an alternative view, see Julian Ku, “The Latest US Freedom of Navigation Operation
Opens the Legal Door to More Aggressive US Challenges to China’s Artificial Islands,” Lawfare, October 24, 2016;
Julian Ku, “U.S. Defense Department Confirms USS Decatur Did Not Follow Innocent Passage and Challenged
China’s Excessive Straight Baselines,” Lawfare, November 4, 2016.
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conducted in innocent passage, and therefore indicate the Dewey exercised high seas
freedoms near Mischief Reef. The U.S. exercise of high seas freedoms around Mischief
Reef broadly repudiates China’s claims of sovereignty over the feature and its surrounding
waters. The operation stands in contrast to the flubbed transit by the USS Lassen near Subi
Reef on October 27, 2015, when it appeared the warship conducted transit in innocent
passage and inadvertently suggested that the feature generated a territorial sea (by China
or some other claimant). That operation was roundly criticized for playing into China’s
hands, with the muddy legal rationale diluting the strategic message. In the case of the
Dewey, the Pentagon made clear that it did not accept a territorial sea around Mischief
Reef—by China or any other state. The United States has shoehorned a rejection of China’s
sovereignty over Mischief Reef into a routine FON operation.
Mischief Reef is not entitled to a territorial sea for several reasons. First, the feature is not
under the sovereignty of any state. Mid-ocean low-tide elevations are incapable of
appropriation, so China’s vast port and airfield complex on the feature are without legal
effect. The feature lies 135 nautical miles from Palawan Island, and therefore is part of the
Philippine continental shelf. The Philippines enjoys sovereign rights and jurisdiction over
the feature, including all of its living and non-living resources....
Second, even if Mischief Reef were a naturally formed island, it still would not be entitled
to a territorial sea until such time as title to the feature was determined. Title may be
negotiated, arbitrated or adjudicated through litigation. But mere assertion of a claim by
China is insufficient to generate lawful title. (If suddenly a new state steps forward to claim
the feature—Britain, perhaps, based on colonial presence—would it be entitled to the
presumption of a territorial sea?) Even Antarctica, an entire continent, does not
automatically generate a territorial sea. A territorial sea is a function of state sovereignty,
and until sovereignty is lawfully obtained, no territorial sea inures.
Third, no state, including China, has established baselines around Mischief Reef in
accordance with article 3 of UNCLOS. A territorial sea is measured from baselines;
without baselines, there can be no territorial sea. What is the policy rationale for this
construction? Baselines place the international community on notice that the coastal state
has a reasonable and lawful departure from which to measure the breadth of the territorial
sea. Unlike the USS Lassen operation, which appeared to be a challenge to some theoretical
or “phantom” territorial sea, the Dewey transit properly reflects the high seas nature of the
waters immediately surrounding Mischief Reef as high seas.
As a feature on the Philippine continental shelf, Mischief Reef is not only incapable of ever
generating a territorial sea but also devoid of national airspace. Aircraft of all nations may
freely overfly Mischief Reef, just as warships and commercial ships may transit as close to
the shoreline as is safe and practical.
The Dewey transit makes good on President Obama’s declaration in 2016 that the Annex
VII tribunal for the Philippines and China issued a “final and binding” decision....
The United States will include the Dewey transit on its annual list of FON operations for
fiscal year 2017, which will be released in the fourth quarter or early next year. How will
the Pentagon account for the operation—what was challenged? The Dewey challenged
China’s claim of “indisputable sovereignty” to Mischief Reef as one of the features in the
South China Sea, and China’s claim of “adjacent” waters surrounding it. This transit cuts
through the diplomatic dissembling that obfuscates the legal seascape and is the most
tangible expression of the U.S. view that the arbitration ruling is “final and binding.”228
Regarding this same FON operation, two other observers stated the following:

228 James Kraska, “Dewey Freedom of Navigation Operation Challenges China’s Sovereignty to Mischief Reef,”
Lawfare, May 25, 2017. See also Ankit Panda, “The US Navy’s First Trump-Era South China Sea FONOP Just
Happened: First Takeaways and Analysis,” The Diplomat, May 25, 2017.
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The Dewey’s action evidently challenged China’s right to control maritime zones adjacent
to the reef—which was declared by the South China Sea arbitration to be nothing more
than a low tide elevation on the Philippine continental shelf. The operation was hailed as a
long-awaited “freedom of navigation operation” (FONOP) and “a challenge to Beijing’s
moves in the South China Sea,” a sign that the United States will not accept “China’s
contested claims” and militarization of the Spratlys, and a statement that Washington “will
not remain passive as Beijing seeks to expand its maritime reach.” Others went further and
welcomed this more muscular U.S. response to China’s assertiveness around the Spratly
Islands to challenge China’s “apparent claim of a territorial sea around Mischief Reef…[as
well as] China’s sovereignty over the land feature” itself.
But did the Dewey actually conduct a FONOP? Probably—but maybe not. Nothing in the
official description of the operation or in open source reporting explicitly states that a
FONOP was in fact conducted. Despite the fanfare, the messaging continues to be
muddled. And that is both unnecessary and unhelpful.
In this post, we identify the source of ambiguity and provide an overview of FONOPs and
what distinguishes them from the routine practice of freedom of navigation. We then
explain why confusing the two is problematic—and particularly problematic in the
Spratlys, where the practice of free navigation is vastly preferable to the reactive FONOP.
FONOPs should continue in routine, low-key fashion wherever there are specific legal
claims to be challenged (as in the Paracel Islands, the other disputed territories in the SCS);
they should not be conducted—much less hyped up beyond proportion—in the Spratlys.
Instead, the routine exercise of freedom of navigation is the most appropriate way to use
the fleet in support of U.S. and allied interests....
... was the Dewey’s passage a FONOP designed to be a narrow legal challenge between
the US and Chinese governments? Or was it a rightful and routine exercise of navigational
freedoms intended to signal reassurance to the region and show U.S. resolve to defend the
rule sets that govern the world’s oceans? Regrettably, the DOD spokesman’s answer was
not clear. The distinction is not trivial....
The U.S. should have undertaken, and made clear that it was undertaking, routine
operations to exercise navigational freedoms around Mischief Reef—rather than (maybe)
conducting a FONOP.
The first problem with conducting FONOP operations at Mischief Reef or creating
confusion on the point is that China has made no actual legal claim that the U.S. can
effectively challenge. In fact, in the Spratlys, no state has made a specific legal claim about
its maritime entitlements around the features it occupies. In other words, not only are there
no “excessive claims,” there are no clear claims to jurisdiction over water space at all.
Jurisdictional claims by a coastal state begin with an official announcement of baselines—
often accompanied by detailed geographic coordinates—to put other states on notice of the
water space the coastal state claims as its own.
China has made several ambiguous claims over water space in the South China Sea. It
issued the notorious 9-dashed line map, for instance, and has made cryptic references that
eventually it might claim that the entire Spratly Island area generates maritime zones as if
it were one physical feature. China has a territorial sea law that requires Chinese maritime
agencies only to employ straight baselines (contrary to international law). And it formally
claimed straight baselines all along its continental coastline, in the Paracels, and for the
Senkaku/Diaoyu Islands, which China claims and Japan administers. All of these actions
are contrary to international law and infringe on international navigational rights. These
have all been subject to American FONOPs in the past—and rightly so. They are excessive
claims. But China has never specified baselines in the Spratlys. Accordingly, no one knows
for sure where China will claim a territorial sea there. So for now, since there is no specific
legal claim to push against, a formal FONOP is the wrong tool for the job. The U.S. Navy
can and should simply exercise the full, lawful measure of high seas freedoms in and
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around the Spratly Islands. Those are the right tools for the job where no actual coastal
state claim is being challenged.
Second, the conflation of routine naval operations with the narrow function of a formal
FONOP needlessly politicizes this important program, blurs the message to China and
other states in the region, blunts its impact on China’s conduct, and makes the program less
effective in other areas of the globe. This conflation first became problematic with the
confused and confusing signaling that followed the FONOP undertaken by the USS Lassen
in the fall of 2015. Afterward, the presence or absence of a FONOP dominated beltway
discussion about China’s problematic conduct in the South China Sea and became the
barometer of American commitment and resolve in the region. Because of this discussion,
FONOPs became reimagined in the public mind as the only meaningful symbol of U.S.
opposition to Chinese policy and activity in the SCS. In 2015 and 2016 especially,
FONOPs were often treated as if they were the sole available operational means to push
back against rising Chinese assertiveness. This was despite a steady U.S. presence in the
region for more than 700 ship days a year and a full schedule of international exercises,
ample intelligence gathering operations, and other important naval demonstrations of U.S.
regional interests.
In consequence, we should welcome the apparent decision not to conduct a FONOP around
Scarborough Shoal—where China also never made any clear baseline or territorial sea
claim. If U.S. policy makers intend to send a signal to China that construction on or around
Scarborough would cross a red line, there are many better ways than a formal FONOP to
send that message....
The routine operations of the fleet in the Pacific theater illustrate the crucial—and often
misunderstood—difference between a formal FONOP and operations that exercise
freedoms of navigation. FONOPs are not the sole remedy to various unlawful restrictions
on navigational rights across the globe, but are instead a small part of a comprehensive
effort to uphold navigational freedoms by practicing them routinely. That consistent
practice of free navigation, not the reactive FONOP, is the policy best suited to respond to
Chinese assertiveness in the SCS. This is especially true in areas such as the Spratly Islands
where China has made no actual legal claims to challenge.229

229 Peter A. Dutton and Isaac B. Kardon, “Forget the FONOPs—Just Fly, Sail and Operate Wherever International Law
Allows,” Lawfare, June 10, 2017.
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Appendix I. Proposals for Modifying U.S. Strategy
This appendix presents a bibliography of some writings by observers who have proposed
modifying the Trump Administration’s strategy for competing strategically with China in the SCS
and ECS, organized by date, beginning with the most recent item.
Joel Wuthnow, “China’s Inopportune Pandemic Assertiveness,” Diplomat, June 10, 2020.
Hunter Stires, “Win Without Fighting,” U.S. Naval Institute Proceedings, June 2020.
James Stavridis, “World Cannot Ignore Chinese Aggression in South China Sea,” Nikkei Asian
Review, May 30, 2020.
Blake Herzinger, “Learning in the South China Sea: The U.S. Response to the West Capella
Standoff,” War on the Rocks, May 18, 2020.
Veeramalla Anjaiah, “How To Tame Aggressive China In South China Sea Amid COVID-19
Crisis—OpEd,” Eurasia Review, May 14, 2020.
Michael Rubin, “The U.S. Must Beat China at its Own Game in South China Sea,” National
Interest, May 13, 2020.
Bradley Bowman and Liane Zivitski, “Beijing is seeking to expel the US from the South China
Sea,” Washington Examiner, May 12, 2020.
Jonathan G. Odom, “Protecting the Rules-Based Order at the International Tribunal for the Law
of the Sea,” Lawfare, May 8, 2020.
Patrick M. Cronin and Ryan D. Neuhard, “Countering China’s Laser Offensive, China’s Military
and Paramilitary Forces Have Been Employing Lasers With Increasing Frequency Since at Least
2018,” Diplomat, April 2, 2020.
Olli Pekka Suorsa, “The Conventional Wisdom Still Stands: America Can Deal with China’s
Artificial Island Bases,” War on the Rocks, February 6, 2020.
David Lampton and Wang Jisi, “How to Prevent US-China Rivalry from Turning Southeast Asia
into a Conflict Zone,” South China Morning Post, January 30, 2020.
Matthew Dalton, “Confronting China: Why America Needs a Maritime Strategy for Disputed
Waters,” National Interest, January 7, 2020.
Patrick M. Cronin and Ryan Neuhard, Total Competition, China’s Challenge in the South China
Sea, Center for a New American Security, January 2020, 41 pp.
Mackubin Thomas Owens, Bradley Bowman, and Andrew Gabel, “Dangerous Waters:
Responding to China’s Maritime Provocations in the South China Sea,” National Interest,
December 20, 2019.
Ely Ratner et al., Rising to the China Challenge, Renewing American Competitiveness in the
Indo-Pacific, Center for a New American Security, December 2019, 64 pp.
James Stavridis, “For the U.S., Vietnam Is a Friend in Need,” Bloomberg, November 17, 2019.
Anders Corr, “Can Vietnam Be America’s New Ally Against China?” National Interest,
November 7, 2019.
Gregory B. Poling and Murray Hiebert, “Stop the Bully in the South China Sea,” Wall Street
Journal, August 28, 2019.
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Doug Bandow, “Is Manila Worth American Lives? The Philippines Might Be a Nice Place to
Visit. But It Isn’t a Nation Whose Security America Should Guarantee,” National Interest, August
4, 2019.
Roy Draa, “Localized Sea Denial: Countering Chinese Aggression in the South China Sea,”
Center for International Maritime Security (CIMSEC), July 22, 2019.
Richard Heydarian, “Why China’s ‘Militarisation’ of the South China Sea Needs a Review by the
Philippines-US Alliance,” South China Morning Post, July 20, 2019.
Richard Javad Heydarian, “The Reed Bank Crisis: A Call for Upgrading the Philippine-U.S.
Alliance,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International
Studies [CSIS]), July 10, 2019.
Michael O’Hanlon, “The Challenge of Confronting China Over a Gray Zone Crisis,” National
Interest, July 9, 2019.
Patrick M. Cronin, “Maritime Order and America’s Indo-Pacific Strategy,” Center for
International Maritime Security (CIMSEC), July 1, 2019.
Michael Peck, “Here’s A (Military) Solution to China’s Vast Claims in the South China Sea,
America Should Sell High-Tech Rockets to the Philippines?” National Interest, May 18, 2019.
Prashanth Parameswaran, “Andrew Erickson and Ryan Martinson on China and the Maritime
Gray Zone,” Diplomat, May 14, 2019.
Hunter Stires, “Why We Defend Free Seas: Why China’s South China Sea Challenge Matters,”
National Interest, May 6, 2009. (Also published as Hunter Stires, “Why We Defend Free Seas,
There Is More at Stake in the South China Sea Than Most Realize,” U.S. Naval Institute
Proceedings, May 2019.)
Hunter Stires, “The South China Sea Needs a ‘COIN’ Toss,” U.S. Naval Institute Proceedings,
May 2019.
Dmitry Filipoff, “Andrew S. Erickson and Ryan D. Martinson Discuss China’s Maritime Gray
Zone Operations,” Center for International Maritime Security (CIMSEC), March 11, 2019.
Bob Jones, “Freedom of Navigation in an Era of Great-Power Competition,” National Review,
March 8, 2019.
James Holmes, “Are Freedom of Navigation Operations in East Asia Enough?” National Interest,
February 23, 2019.
Andrew S. Erickson, “Maritime Numbers Game, Understanding and Responding to China’s
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James R. Holmes, “Use It or Lose It: Seagoing Nations Must Defend Embattled Waterways,” The
Hill, January 27, 2019.
Gregory Poling and Eric Sayers, “Time to Make Good on the U.S.-Philippine Alliance,” War on
the Rocks, January 21, 2019.
Gregory Poling and Bonnie S. Glaser, “How the U.S. Can Step Up in the South China Sea,”
Foreign Affairs, January 16, 2019.
Zack Cooper and Gregory Poling, “America’s Freedom of Navigation Operations Are Lost at
Sea, Far Wider Measures Are Needed to Challenge Beijing’s Maritime Aggression,” Foreign
Policy, January 8, 2019.
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Andrew S. Erickson, “Shining a Spotlight: Revealing China’s Maritime Militia to Deter its Use,”
National Interest, November 25, 2018.
Eric Sayers, “Assessing America’s Indo-Pacific Budget Shortfall,” War on the Rocks, November
15, 2018.
Patrick N. Cronin and Richard Javad Heydarian, “This Is How America and the Philippines Can
Upgrade Their Alliance,” National Interest, November 12, 2018.
John Lee, Freedom of Navigation and East Asian Stability: Countering Beijing’s Campaign of
Historical Revisionism,” Hudson Institute, November 2018, 8 pp.
Ryan Martinson and Peter Dutton, “Chinese Scientists Want to Conduct Research in U.S.
Waters—Should Washington Let Them?” National Interest, November 4, 2018.
Hunter Stires, “Understanding and Defeating China’s Maritime Insurgency in the South china
Sea,” National Interest, November 1, 2018.
Robert D. Kaplan, “How President Trump Is Helping Beijing Win in the South China Sea,”
Washington Post, October 9, 2018.
Tuan Pham, “China’s Worth Nightmare: RIMPAC 2020 in the South China Sea?” National
Interest, September 29, 2018.
Patrick M. Cronin and Hunter Stires, “China is Waging a Maritime Insurgency in the South China
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2018.
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Robert Farley, “The South China Sea Conundrum for the United States,” The Diplomat, June 5,
2018.
Joel Gehrke, “Marco Rubio: US Must Develop Plan to ‘Destroy’ Chinese Assets in South China
Sea,” Washington Examiner, June 4, 2018.
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Think-Tank,” Taiwan News, June 4, 2018.
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May 29, 2018.
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Ben Cipperley, “In the Era of Great Power Competition, the US Needs to Step Up Its Game,” The
Diplomat, May 8, 2018.
Stephen Bryen, “How to Counter China’s Fortified Islands in South China Sea,” Asia Times, May
5, 2018.
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April 6, 2018.
Shawn Lansing, “A White Hull Approach to Taming the Dragon: Using the Coast Guard to
Counter China,” War on the Rocks, February 22, 2018.
Dean Cheng, “Wanted: A Strategy to Limit China’s Grand Plans for the South China Sea,”
National Interest, January 30, 2018.
Hal Brands, “China Hasn’t Won the Pacific (Unless You Think It Has),” Bloomberg, January 5,
2018.

Author Information

Ronald O'Rourke

Specialist in Naval Affairs

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