U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress

October 22, 2012 – August 26, 2024 R42784

U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress

Updated August 26, 2024

Congressional Research Service

https://crsreports.congress.gov

R42784

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

Congressional Research Service

Summary

Over the past 10 to 15 years, the South China Sea (SCS) has emerged as an arena of strategic competition between the United States and the People’s Republic of China (PRC, or China). China’s actions in the SCS—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. PRC 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 broader 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 pursuing 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 issue for Congress is whether the 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.

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Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 1

U.S. Interests in SCS and ECS .................................................................................................. 1

Overview ............................................................................................................................. 1

Specific Elements................................................................................................................ 1

Maritime Territorial and EEZ Disputes Involving China .......................................................... 7

Maritime Territorial Disputes .............................................................................................. 8

EEZ Dispute ........................................................................................................................ 8

Relationship of Maritime Territorial Disputes to EEZ Dispute .......................................... 9

China’s Approach to SCS and ECS ........................................................................................... 9

Overview ............................................................................................................................. 9

Selected Elements .............................................................................................................. 11

Assessments of China’s Strengthened Position in SCS .................................................... 17

U.S. Position Regarding Issues Relating to SCS and ECS ..................................................... 17

Overview ........................................................................................................................... 17

Freedom of Navigation (FON) Program ........................................................................... 19

Taiwan Strait Transits ....................................................................................................... 20

Issues for Congress ........................................................................................................................ 21

U.S. Strategy for Competing Strategically with China in SCS and ECS ................................ 21

Overview ........................................................................................................................... 21

Trump Administration’s Strategy ...................................................................................... 28

Biden Administration’s Strategy ....................................................................................... 30 Tables Showing Reported SCS FON Operations and Taiwan Strait Transits ................... 33 Assessing the Administration’s Strategy ........................................................................... 39

Risk of Incident, Crisis, or Conflict Involving U.S. Forces .................................................... 39

Risk Relating to U.S. and PRC Military Operations In SCS ............................................ 39 Risk Relating to Maritime Territorial Disputes Involving Allies ...................................... 40

Whether United States Should Ratify UNCLOS .................................................................... 41

Legislative Activity in the 118^th Congress ..................................................................................... 42

Legislative Activity for FY2025 ............................................................................................. 42

FY2025 National Defense Authorization Act (NDAA) (H.R. 8070/S. 4638)................... 42

Other Legislative Activity ....................................................................................................... 43

Figures

Figure 1. Reported Military Facilities at SCS Sites Occupied by China ....................................... 14

Figure 2. Reported PRC Aircraft, Missile, and Radar Ranges ...................................................... 15 Figure 3. Approximate Reported Locations of FONOPs in 2016-2019 ........................................ 37

Figure A-1. Maritime Territorial Disputes Involving China .......................................................... 45

Figure A-2. Locations of 2001, 2002, and 2009 U.S.-PRC Incidents at Sea and In Air ............... 48 Figure E-1. Map of the Nine-Dash Line ........................................................................................ 80

Figure E-2. EEZs Overlapping Zone Enclosed by Map of Nine-Dash Line ................................. 81

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Figure G-1. EEZs in South China Sea and East China Sea ......................................................... 102 Figure G-2. Claimable World EEZs ............................................................................................ 103

Tables

Table 1. China’s Apparent Goals and Supporting Actions for South China Sea ........................... 10 Table 2. Reported FON Operations in SCS During Trump Administration .................................. 33 Table 3. Reported FON Operations in SCS During Biden Administration ................................... 35 Table 4. Reported Numbers of U.S. Navy SCS FONOPs and Taiwan Strait Transits................... 36

Appendixes

Appendix A. Maritime Territorial and EEZ Disputes in SCS and ECS ........................................ 44 Appendix B. U.S. Security Treaties with Japan and Philippines ................................................... 52

Appendix C. Treaties and Agreements Related to the Maritime Disputes .................................... 54 Appendix D. July 2016 Tribunal Award in Philippines-China SCS Arbitration Case ................... 64

Appendix E. China’s Approach to Maritime Disputes in SCS and ECS ....................................... 68 Appendix F. Assessments of China’s Strengthened Position in SCS ............................................ 88 Appendix G. U.S. Position Regarding SCS, ECS, and EEZ Operational Rights .......................... 91

Appendix H. U.S. Freedom of Navigation (FON) Program ........................................................ 107

Appendix I. Writings by Observers Regarding U.S. Strategy for SCS and ECS ......................... 113

Contacts

Author Information ....................................................................................................................... 118

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Introduction

This report provides background information and issues for Congress regarding strategic competition between the United States and the People’s Republic of China (PRC, or China) in the South China Sea (SCS) and East China Sea (ECS). Over the past 10 to 15 years, the South China Sea (SCS) has emerged as an arena of U.S.-China strategic competition.¹ China’s actions in the SCS 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. PRC 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.

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.²

Background

U.S. Interests in SCS and ECS

Overview

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.

Specific Elements

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,

1 For more on U.S. strategic competition with China and Russia, also known as great power competition, see CRS Report R43838, Great Power Competition: Implications for Defense—Issues for Congress, by Ronald O'Rourke.

2 See CRS In Focus IF12550, China-Philippines Tensions in the South China Sea, by Caitlin Campbell, Ben Dolven, and Thomas Lum; CRS In Focus IF10607, China Primer: South China Sea Disputes, 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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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),³ 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, PRC bases in the SCS and forces operating from them⁴ would add to a network of PRC 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 PRC 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).⁶ In a conflict with the United States, PRC bases in the SCS and forces operating from them would be vulnerable to U.S. attack.⁷ 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.⁸

Short of a conflict with the United States, PRC bases in the SCS, and more generally, PRC 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, oil and gas exploration activities, seabed mining, and seabed internet cable-laying operations⁹ in the SCS—a body of water with an area more than twice that of the Mediterranean Sea;¹⁰

3 For more on the Taiwan Relations Act, see CRS In Focus IF10275, Taiwan: Background and U.S. Relations, by Susan V. Lawrence; and CRS In Focus IF12481, Taiwan: Defense and Military Issues, by Caitlin Campbell.

4 For an overview of some of the A2/AD capabilities that China has built on sites that it occupies in the SCS, see J. Michael Dahm, Introduction to South China Sea Military Capability Studies, Johns Hopkins Applied Physics Laboratory, July 2020, 17 pp. See also Zachary Haver (Insikt Group), The People's Liberation Army in the South China Sea: An Organizational Guide, Recorded Future, January 19, 2022, 32 pp.

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, Military and Security Developments Involving the People’s Republic of China 2022, Annual Report to Congress, released November 29, 2022, p. 67. The exact position and shape of the lines demarcating the first and second island chains often differ from map to map.

6 See, for example, Felix K. Chang, “China’s Maritime Intelligence, Surveillance, and Reconnaissance Capability in the South China Sea,” Foreign Policy Research Institute, May 5, 2021.

7 See, for example, Kristin Huang, “Beijing’s South China Sea Military Bases ‘Are Vulnerable to Attack and Will Be of Little Use in a War,’” South China Morning Post, December 6, 2020; James Griffiths, “Beijing May Have Built Bases in the South China Sea, but that Doesn't Mean It Can Defend Them, Report Claims,” CNN, December 7, 2020; ANI, “Do Beijing’s Artificial Islands in the South China Sea Represent An Asset to Its Military” Times, of India, June 28, 2021.

8 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.

9 Regarding seabed internet cable-laying operations, see, for example, Anna Gross, Alexandra Heal, Demetri Sevastopulo, Kathrin Hille, and Mercedes Ruehl, “China Exerts Control over Internet Cable Projects in South China Sea,” Financial Times, March 13 2023.

10 The National Oceanic and Atmospheric Administration (NOAA) states that the area of the South China Sea is 6.963 million square kilometers (about 2.688 million square miles)—more than twice that of the Mediterranean Sea, which is (continued...)

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• 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;¹¹

• facilitate the projection of PRC 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.

In light of some of the preceding points, PRC bases in the SCS, and more generally, PRC 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 the People’s Republic of 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.¹²

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 that might not be in the U.S. interest. 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 PRC 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 the Philippines or Japan, 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 the Philippines and Japan.

Principle of Nonuse of Force or Coercion

A key element of the international order that the United States and its allies established in the years after 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

2.967 million square kilometers (about 1.146 million square miles). (National Oceanic and Atmospheric Administration, National Geophysical Data Center, “World Ocean Volumes,” accessed May 31, 2023, at https://www.ncei.noaa.gov/sites/g/files/anmtlf171/files/2023-01/World%20Ocean%20Volumes.pdf.)

11 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.

12 U.S. policymakers for the past several decades have chosen to pursue, as a key element of U.S. national strategy, a goal of preventing the emergence of regional hegemons in Eurasia. For additional discussion, see CRS In Focus IF10485, Defense Primer: Geography, Strategy, and U.S. Force Design, by Ronald O'Rourke.

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observers are concerned that China’s actions in SCS and ECS challenge this principle and—along with Russia’s war against 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.¹³

Principle of Freedom of the Seas

Another key element of the post-World War II international order 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 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 “all of the rights, freedoms, and uses of the sea and airspace guaranteed to all nations by international law.”¹⁴ DOD stated in 2015 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.¹⁵

The principle of freedom of the seas dates back about 400 years, to the early 1600s,¹⁶ and is reflected in the United Nations Convention on the Law of the Sea (UNCLOS), Article 89 of which states, “No State may validly purport to subject any part of the high seas to its sovereignty.” The principle of freedom of the seas has long been a matter of importance to the United States. DOD stated in 2018 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

13 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.”

14 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report, Fiscal Year 2023, generated on March 8, 2024, released on May 8, 2024, PDF page 3 of 6.

15 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 2.

16 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’— 400^th Anniversary,” International Law Observer, March 10, 2009.

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II, President Franklin Roosevelt declared that our military forces had a “duty of maintaining the American policy of freedom of the seas.”¹⁷

DOD similarly stated in 2019 that

Since its founding, the United States has stood for—and fought for—freedom of the seas. As a result of that commitment, freedom of navigation has been enshrined as a fundamental tenet of the rules-based international order for the last 75 years. In that time, it has proved essential to global security and stability and the prosperity of all nations.¹⁸

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 so-called nine-dash map of 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 SCS and ECS,” below, and Appendix A and Appendix E).¹⁹

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. 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.²⁰

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

17 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 (generated February 28, 2019), p. 1.

18 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report, Fiscal Year 2019, Pursuant to Section 1275 of the National Defense Authorization Act for Fiscal Year (FY) 2017 (P.L. 114- 328), generated February 28, 2020, p. 1. DOD similarly stated in 2019 in another document that

Throughout our history, the United States has asserted a key national interest in preserving the freedom of the seas, and has often relied on the U.S. military forces to protect that interest. As President Ronald Reagan said in releasing the U.S. Oceans Policy in 1983, “we will not acquiesce in unilateral actions of other states designed to restrict the rights and freedoms of the international community in navigation and overflight.” (Department of Defense, Indo-Pacific Strategy Report, Preparedness, Partnerships, and Promoting a Networked Region, June 1, 2019, p. 43.)

19 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 right UNCLOS to regulate foreign economic activities in their own EEZs.

20 See, for example, David Bosco, “China is Reshaping the Maritime Legal Order,” Lawfare, July 25, 2024 (a book review of China’s Law of the Sea: The New Rules of Maritime Order, by Isaac B. Kardon); Peter A. Dutton, “China Is Rewriting the Law of the Sea,” Foreign Policy, June 10, 2023; James Stavridis, “Russia-U.K. Standoff Shows the New War at Sea Has Gone Global,” Bloomberg, July 2, 2021; James Holmes, “Do Russia Or China Have ‘Limited’ Or ‘Unlimited’ Political Goals?” 19FortyFive, April 4, 2021; Malcolm Jorgensen, “China Is Overturning the Rules-Based Order from Within,” Interpreter, August 12, 2020; James Holmes, “China Wants Ownership of the South China Sea. Here’s Why That Can’t Happen,” National Interest, July 17, 2020; 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; Roncevert Ganan Almond, “The Extraterrestrial [Legal] Impact of the South China Sea Dispute,” The Diplomat, October 3, 2017.

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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.²¹ 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.²²

Trade Routes and Hydrocarbons

Major commercial shipping routes pass through the SCS, which links the Western Pacific to the Indian Ocean and Persian Gulf. One source estimated that, as of 2016, about $3.4 trillion worth of international shipping trade passed through the SCS each year. This same source states:

The United Nations Conference on Trade and Development (UNCTAD) estimates that roughly 80 percent of global trade by volume and 70 percent by value is transported by sea. Of that volume, 60 percent of maritime trade passes through Asia, with the South China Sea carrying an estimated one-third of global shipping. Its waters are particularly critical for China, Taiwan, Japan, and South Korea, all of which rely on the Strait of Malacca, which connects the South China Sea and, by extension, the Pacific Ocean with the Indian Ocean.²³

DOD similarly states that the SCS “plays an important role in security considerations across East Asia because Northeast Asia relies heavily on the flow of oil and commerce through SCS shipping lanes, including more than 80 percent of the crude oil [flowing] to Japan, South Korea, and Taiwan.”²⁴ In addition, the ECS and SCS contain potentially significant oil and gas exploration areas.²⁵

21 The National Oceanic and Atmospheric Administration (NOAA) calculates that EEZs account for about 30.4% of the world’s oceans. (See “Comparative Sizes of the Various Maritime Zones” at the end of “Maritime Zones and Boundaries,” accessed May 31, 2023, at https://www.noaa.gov/maritime-zones-and-boundaries, which states that EEZs account for 101.9 million square kilometers of the world’s approximately 335.0 million square kilometers of oceans.)

22 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.

23 “How Much Trade Transits the South China Sea?” China Power (CSIS), August 2, 2017, updated January 25, 2021, accessed August 19, 2024, at https://chinapower.csis.org/much-trade-transits-south-china-sea/. See also Kerem Coşar and Benjamin D. Thomas, “The Geopolitics of International Trade in Southeast Asia,” working paper, National Bureau of Economic Research, November 2020, 17 pp., accessed May 31, 2023, at https://www.nber.org/papers/w28048.

24 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s Republic of China 2023, released October 19, 2023, p. 18.

25 See, for example, International Institute for Strategic Studies, The Economic and Security Implications of China’s Activities in the South China Sea, November 2021, 3 pp. 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, November 13, 2018. For contrary views regarding the importance of the SCS in connection with trade routes and hydrocarbons, see John Quiggin, “Myths That Stir Trouble in the South China Sea, A Major Shipping Route, Yes, But Vital? False Claims About the Value of These Waters Only Make Diplomacy Harder,” Interpreter, December 23, 2021; Ethen Kim Lieser, (continued...)

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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.²⁶

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.²⁷

Views of U.S. Allies Elsewhere of Reliability of United States as an Ally

Some observers argue that U.S. actions regarding the situation in the SCS and ECS could impact views of U.S. allies elsewhere in the world regarding the reliability and resolve of the United States as an ally.²⁸

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.²⁹ For background information on treaties and international agreements related to the

“How Much Oil and Gas Is Contained in the South China Sea? The Entire Contested Region Is Chock-Full Of Valuable Resources. Or Is It?” National Interest, February 22, 2021; 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. See also Mark Crescenzi and Stephen Gent, “China’s Deep-Sea Motivation for Claiming Sovereignty Over the South China Sea, At the Bottom of the Contested Waters Lies a Supply of the Rare Earth Minerals Crucial to China’s Tech Ambitions,” Diplomat, May 6, 2021. 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.

26 See, for example, Charlie Dunlap, “CDR Tracy Reynolds on ‘China & the Moon & the Law,’” Lawfire, January 23, 2023; Akshobh Giridharadas, “The South China Sea Reveals China’s Grand Strategy, To Understand China’s Grand Strategy, Particularly Xi’s Long-Term Game, One Needs to Understand Beijing’s Belligerence in the South China Sea,” National Interest, July 1, 2021.

27 For discussions of U.S.-China relations, see CRS In Focus IF10119, China Primer: U.S.-China Relations, by Susan V. Lawrence and Karen M. Sutter, and CRS Report R41108, U.S.-China Relations: An Overview of Policy Issues, by Susan V. Lawrence.

28 See, for example, Andreas Kluth, “The South China Sea Is the Next Test of US Resolve, Much Is at Stake for the US in Those Distant Reefs and Shoals. And from Europe to the Middle East and East Asia, America’s Allies Are Watching,” Bloomberg, March 2, 2004.

29 See CRS In Focus IF10607, China Primer: South China Sea Disputes, by Ben Dolven, Susan V. Lawrence, and Ronald O'Rourke; CRS Report R42930, Maritime Territorial Disputes in East Asia: Issues for Congress, by Ben (continued...)

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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.

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 Spratly Islands in the SCS, which are claimed entirely by China, Taiwan, and Vietnam, and in part by the Philippines, Malaysia, 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;

• a dispute over the Paracel Islands in the SCS, which are claimed by China and Vietnam, and occupied 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 Dispute³⁰

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.³¹

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 PRC and U.S. ships and aircraft in international waters and airspace dating back at least to 2001.

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.

30 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.

31 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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Relationship of Maritime Territorial Disputes to EEZ Dispute

The issue of whether China has the right under UNCLOS to regulate foreign military activities in its EEZ is related to, but ultimately separate from, the issue of territorial disputes in the SCS and ECS:

• The two issues are related because China can claim EEZs from inhabitable islands over which it has sovereignty, so accepting China’s claims to sovereignty over inhabitable islands in the SCS or ECS could permit China to expand the EEZ zone within which China claims a right to regulate foreign military activities.

• The two issues are ultimately separate from one another because even if all the territorial disputes in the SCS and ECS were resolved, and none of China’s claims in the SCS and ECS were accepted, China could continue to apply its concept of its EEZ rights to the EEZ that it unequivocally derives from its mainland coast—and it is in this unequivocal PRC EEZ that several of the past U.S.-PRC 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.-PRC 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 SCS and ECS

Overview

China’s approach to maritime disputes in the SCS and ECS, and to strengthening its position over time in the SCS, can be characterized as including the following, some of which are discussed further in following sections:

• 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 a multielement strategy that includes diplomatic, informational, economic, military, paramilitary/law enforcement, and civilian elements.

• China’s approach includes the use of gradualist, “salami-slicing” activities and gray zone operations, many of which are carried out by China’s maritime militia.

• China’s approach includes an apparent preference for discussing maritime territorial disputes with other countries in the region though bilateral (as opposed to multilateral) engagements. As the largest country in the region, China may believe that it can more easily gain the upper hand in bilateral rather than multilateral discussions, particularly since multilateral discussions can provide settings for other countries in the region to act collectively to oppose China’s actions in the SCS and ECS.

• China’s approach includes resisting and objecting to the involvement of outside actors, such as the United States, in maritime disputes in the SCS and ECS, and discouraging other countries in the region from working collectively with outside actors such as the United States to oppose China’s actions in the SCS and ECS.

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• In implementing its approach to maritime disputes in the SCS and ECS, China appears to be persistent, patient, and tactically flexible—it is “playing a long game.”

• To achieve its goals in the SCS and ECS, China is willing to expend significant resources and 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.³²

Table 1 summarizes China’s apparent goals relating to the SCS, and the types of actions it undertakes in support of those goals, as assessed in a January 2020 report by the Center for a New American Security (CNAS) on China’s strategy for the SCS.

Table 1. China’s Apparent Goals and Supporting Actions for South China Sea

As assessed in January 2020 CNAS report

Supporting actions

Apparent goals

Rally support

domestically

Deter

U.S.

Intimidate

neighbors and

encourage

appeasement/

compliance

Tempt neighbors

to cooperate in

exchange for

future economic

benefits

Reinforce

image of

China as an

economic

powerhouse

PLA operations^a X X X

China Coast Guard operations^b X X X

Maritime militia swarming X

Dredging fleet and island construction team operations^c

X X X

Operations by state banks and state-owned enterprises^d

X X

State media operations^e 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.

A December 13, 2023, opinion piece states that a possible additional goal for China’s actions in the SCS is to discourage Western businesses from shifting their operations from China to the

32 For additional discussion, see Shuxian Luo, “The Rising Power’s Audiences and Cost Trade-offs: Explaining China’s Escalation and Deescalation in Maritime Disputes,” Asian Security, published online December 21, 2021, at https://doi.org/10.1080/14799855.2021.2012159; 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.

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Philippines or other countries in the region as part of a friendshoring strategy for reducing Western reliance on business operations based in China.³³

Selected Elements

“Salami-Slicing” Strategy and Gray Zone Operations

Observers frequently characterize China’s approach to the SCS and ECS as a gradualist, “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.³⁴ Other observers have referred to this approach as incrementalism,³⁵ creeping annexation,³⁶ creeping invasion,³⁷ or working to gain ownership through adverse possession,³⁸ or as a “talk and take” strategy, meaning a strategy in which China engages in (or draws out) negotiations while taking gradual actions to gain control of contested areas.³⁹

Observers frequently argue that in support of this gradualist approach, China makes frequent use of gray zone operations, meaning operations that reside in a gray zone between peace and war.⁴⁰ Gray zone operations can create a conundrum for countries that seek ways to counter them effectively without appearing to employ excessive force or risk escalating the level of violence. Some observers argue that rather than using the term gray zone operations, China’s actions should be referred to as illegal, coercive, aggressive and deceptive (ICAD) operations.⁴¹ One U.S. official has characterized China’s actions as amounting to a “boiling frog” strategy.⁴²

33 Elisabeth Braw, “Why China Is Stepping Up Its Maritime Attacks on the Philippines,” Foreign Policy, December 13, 2023.

34 See, for example, Julian Ryall, “As Regional Tensions Rise, China Probing Neighbors’ Defense,” Deutsche Welle (DW), October 13, 2022. Another press report refers to the process as “akin to peeling an onion, slowly and deliberately pulling back layers to reach a goal at the center.” (Brad Lendon, “China Is Relentlessly Trying to Peel away Japan’s Resolve on Disputed Islands,” CNN, July 8, 2022.)

35 See, for example, Patrick Mendis and Joey Wang, “China’s Art of Strategic Incrementalism in the South China Sea,” National Interest, August 8, 2020.

36 See, for example, Alan Dupont, “China’s Maritime Power Trip,” The Australian, May 24, 2014.

37 Jackson Diehl, “China’s ‘Creeping Invasion,” Washington Post, September 14, 2014.

38 See Ian Ralby, “China’s Maritime Strategy: To Own the Oceans by Adverse Possession,” The Hill, March 28, 2023.

39 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.

40 See, for example, Masaaki Yatsuzuka, “How China’s Maritime Militia Takes Advantage of the Grey Zone,” Strategist, January 16, 2023. See also Anika Arora Seth, “Weapons of Choice in China’s Territorial Disputes? Axes, Knives, ‘Jostling,’” Washington Post, June 22, 2024.

41 See, for example, David Dizon, “ICAD Tactics: ‘Chinese Plane Dropped 8 Flares on PAF Aircraft’s Flight Path,’” ABS-CBN News, August 12, 2024; Karishma Vaswani, “It Is Time to Give China’s Muscle-Flexing a New Name,” Taipei Times, July 31, 2024 (also published as Karishma Vaswani, “There’s Nothing Gray About China’s Maritime Muscle-Flexing; Illegal, Coercive, Aggressive and Deceptive—Why the ICAD Moniker for Beijing’s Actions in the South China Sea Needs to Be Adopted,” Bloomberg, July 24, 2024); Adam Lockyer, Yves-Heng Lim, and Courtney J. Fung, “Moving Beyond the Grey Zone: The Case for ICAD,” Interpreter, July 17, 2024; Bill Gertz, “China’s Gray- Zone Operations ‘Illegal, Coercive, Aggressive, Deceptive,’ Paparo Says,” Washington Times, May 6, 2024; Ken Moriyasu, “China’s Territorial Claims Illegal, Deceptive: U.S. Indo-Pacific Chief,” Nikkei Asia, May 4, 2024. See also James Holmes, “Is China at War in the South China Sea?” National Interest, June 29, 2024.

42 Matthew Loh, “China Is Gradually Amping up Its Military Aggression in a ‘Boiling Frog’ Strategy, US Indo-Pacific Commander Says,” Business Insider, April 28, 2024; Demetri Sevastopulo, “US Pacific Commander Says China Is Pursuing ‘Boiling Frog’ Strategy,” Financial Times, April 28, 2024.

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An April 10, 2021, press report states

China is trying to wear down its neighbors with relentless pressure tactics designed to push its territorial claims, employing military aircraft, militia boats and sand dredgers to dominate access to disputed areas, U.S. government officials and regional experts say.

The confrontations fall short of outright military action without shots being fired, but Beijing’s aggressive moves are gradually altering the status quo, laying the foundation for China to potentially exert control over contested territory across vast stretches of the Pacific Ocean, the officials and experts say….

The Chinese are “trying to grind them down,” said a senior U.S. Defense official….

“Beijing never really presents you with a clear deadline with a reason to use force. You just find yourselves worn down and slowly pushed back,” [Gregory Poling of the Center for Strategic and International Studies] said.⁴³

Use of Coast Guard Ships and Maritime Militia

China asserts and defends its maritime claims primarily with its maritime militia and its coast guard rather than its navy, although the navy can serve as an “over-the-horizon” backup force when needed. Operations by the maritime militia are particularly prominent in the SCS. For more on China’s coast guard and maritime militia, see Appendix E.

Preference for Treating Territorial Disputes on Bilateral Basis

As mentioned above, China appears to prefer discussing maritime territorial disputes with other countries in the region though bilateral (as opposed to multilateral) engagements. As the largest country in the region, China may believe that it can more easily gain the upper hand in bilateral rather than multilateral discussions, particularly since multilateral discussions can provide settings for other countries in the region to act collectively to oppose China’s actions in the SCS and ECS. China generally has resisted multilateral approaches to resolving maritime territorial disputes, stating that such approaches would internationalize the disputes, although the disputes are by definition international even when addressed on a bilateral basis. China’s participation with the ASEAN states in the 2002 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, though it might also be argued that the drawn-out negotiations on the COC are consistent with a “talk and take” strategy.

Depiction of United States as Outsider Seeking to “Stir Up Trouble”

China resists and objects to the involvement of outside actors, such as the United States, in maritime disputes in the SCS and ECS, and discourages other countries in the region from working collectively with outside actors such as the United States to oppose China’s actions 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” (or words to that effect) in an otherwise purportedly 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

43 Dan De Luce, “China Tries to Wear Down Its Neighbors with Pressure Tactics,” NBC News, April 10, 2021.

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(rather than multilateral) discussions with other countries in the region over maritime territorial disputes.

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.⁴⁴

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 for supporting operations by large or high-performance aircraft, as well as substantial numbers of buildings and other structures.

Figure 1 and Figure 2 show reported military facilities at sites that China occupies in the SCS, and reported aircraft, missile, and radar “range rings” extending from those sites. 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.⁴⁵

44 Mira Rapp-Hooper, “Before and After: The South China Sea Transformed,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), February 18, 2015.

45 See, for example, “Vietnam’s Island Building: Double-Standard or Drop in the Bucket?,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [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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Figure 1. Reported Military Facilities at SCS Sites Occupied by China

Source: Illustration accompanying Karen Leigh, Peter Martin and Adrian Leung, “Troubled Waters: Where the U.S. and China Could Clash in the South China Sea,” Bloomberg, December 17, 2020.

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Figure 2. Reported PRC Aircraft, Missile, and Radar Ranges

From PRC-occupied sites in SCS

Source: Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), “Chinese Power Projection Capabilities in the South China Sea,” at https://amti.csis.org/chinese-power- projection/. The information box on the right side of the figure is part of the graphic as presented at the AMTI website.

Other Actions That Have Heightened Concerns

Additional PRC actions in the SCS and ECS over the last 10 to 15 years that have heightened concerns among U.S. observers include the following, among others:

• China’s actions in 2012, following a confrontation between PRC and Philippine ships at Scarborough Shoal in the SCS, to gain de facto control over access to the shoal and its surrounding fishing areas;

• China’s announcement on November 23, 2013, of an air defense identification zone (ADIZ) over the ECS that includes airspace over the Senkaku Islands;⁴⁶

• frequent patrols by PRC Coast Guard ships—some observers refer to them as harassment operations—at the Senkaku Islands;

• PRC 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;⁴⁷

46 See CRS Report R43894, China's Air Defense Identification Zone (ADIZ), by Ian E. Rinehart and Bart Elias.

47 See, for example, “Shifting Tactics at Second Thomas Shoal,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), August 22, 2024; “Tracking Tensions At Second Thomas Shoal,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), January 30, 2024.

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• a growing civilian PRC presence on some of the sites in the SCS occupied by China in the SCS, including both PRC vacationers and (in the Paracels) permanent settlements; and

• a new PRC maritime law that went into effect in September 2021 that seeks to impose new notification and other requirements on foreign ships entering what China describes as “sea areas under the jurisdiction” of China, prompting some observers state that the law could lead to increased tensions in the SCS, particularly if China takes actions to enforce its provisions.⁴⁸

Apparent Narrow Definition of “Freedom of Navigation”

China regularly states that it supports freedom of navigation and has not interfered with freedom of navigation, and in November 2023 signed a joint communique along with 18 other Asia- Pacific countries recognizing freedom of navigation under the United Nations Convention on the Law of the Sea (UNCLOS).⁴⁹ 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 PRC 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-PRC fishing vessels—something that some observers regard as a form of interfering with freedom of navigation for commercial ships.

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.

48 See, for example, Raul (Pete) Pedrozo, “China’s Revised Maritime Traffic Safety Law,” International Law Studies (U.S. Naval War College), Vol. 97, 2021: 956-968; Nguyen Thanh Trung and Le Ngoc Khanh Ngan, “Codifying Waters and Reshaping Orders: China’s Strategy for Dominating the South China Sea,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), September 27, 2021; Navmi Krishna, “Explained: Why China’s New Maritime Law May Spike Tensions in South China Sea,” Indian Express, September 7, 2021; Brad Lendon and Steve George, “The Long Arm of China’s New Maritime Law Risks Causing Conflict with US and Japan,” CNN, September 3, 2021; John Feng, “U.S. Says China Maritime Law Poses ‘Serious Threat’ to Freedom of the Seas,” Newsweek, September 2, 2021; Richard Javad Heydarian, “China’s Foreign Ship Law Stokes South China Sea Tensions,” Asia Times, September 2, 2021; Alex Wilson, “Beijing’s New Law for Foreign Vessels Won’t Impact US Navy in South China Sea, Pentagon Says,” Stars and Stripes, September 2, 2021. See also James Holmes, “Are China And Russia Trying To Attack The Law Of The Sea?” 19FortyFive, August 31, 2021. Regarding a follow-on regulation relating to this law that went into force in June 2024, see Arran Hope, “New China Coast Guard Regulation Buttresses PRC Aggression in the South China Sea,” China Brief, June 21, 2024; U.S. Indo-Pacific Command, “TOPIC: China Coast Guard Regulation No. 3,” USINDOPACOM J06/SJA Tacaid Series, updated May 30, 2024, 6 pp.

49 Marc Jayson Cayabyab, “AsPac Signs Communique on Freedom of Navigation,” Philippine Star, November 26, 2023, which states that the communique was signed at the annual meeting of Asia Pacific Parliamentary Forum (APPF), and that the other countries were the Philippines, Australia, Brunei, Cambodia, Canada, Chile, Indonesia, Japan, South Korea, Laos, Malaysia, Mexico, Federated States of Micronesia, Papua New Guinea, Peru, Russia, Thailand, and Vietnam.

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Additional Elements

For additional information on China’s approach to the SCS and ECS, including elements discussed briefly above as well as the so-called map of the nine-dash line that China uses to depict its claims in the SCS, see Appendix E.

Assessments of China’s Strengthened 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),⁵⁰ stated that “China is now capable of controlling the South China Sea in all scenarios short of war with the United States.”⁵¹ For additional assessments of China’s strengthened position in the SCS, see Appendix F.

U.S. Position Regarding Issues Relating to SCS and ECS

Overview

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 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.⁵²

• 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

50 The name of the command has since been changed to the U.S. Indo-Pacific Command (INDOPACOM).

51 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.

52 Statements such as this one, including in particular phrases such as “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, 7^th Fleet Public Affairs, “7^th Fleet Destroyer conducts Freedom of Navigation Operation in South China Sea,” Commander, U.S. 7^th Fleet, January 20, 2022, accessed May 31, 2023, at https://www.c7f.navy.mil/Media/News/ Display/Article/2904786/7th-fleet-destroyer-conducts-freedom-of-navigation-operation-in-south-china-sea/.

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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: • China’s maritime claims in the SCS are unfounded, unlawful, and unreasonable, and are without legal, historic, or geographic merit.⁵³ China’s claims to offshore resources across most of the SCS are completely unlawful, as is its campaign of bullying to control them. China has no legal grounds to unilaterally impose its will on the region, and has offered no coherent legal basis for its nine-dashed line claim in the SCS since formally announcing it in 2009.

• The U.S. position on China’s maritime claims in the SCS is aligned with the July 12, 2016, award of the arbitral tribunal that was constituted under UNCLOS (a treaty to which China is a party) in the case that the Philippines brought against China. The tribunal’s award rejected China’s maritime claims as having no basis in international law and sided squarely with the Philippines on almost all claims. As specifically provided in UNCLOS, the tribunal’s decision is final and legally binding on both parties.

• Consistent with the tribunal’s award, China cannot lawfully assert a maritime claim—including any EEZ claims derived from Scarborough Reef and the Spratly Islands—vis-a-vis the Philippines in areas that the tribunal found to be in the Philippines’ EEZ or on its continental shelf. China’s harassment of Philippine fisheries and offshore energy development within those areas is unlawful, as are any unilateral actions by China to exploit those resources. Since China has failed to put forth a lawful, coherent maritime claim in the SCS, the United States rejects any claim by China to waters beyond a 12- nautical mile territorial sea derived from islands it claims in the Spratly Islands (without prejudice to other states’ sovereignty claims over such islands).

• The United States stands with its Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law, and rejects any push to impose a situation of might makes right in the SCS or the wider region. 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.⁵⁴ The United States will not accept

53 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.”

54 In a November 20, 2019, speech in Hanoi, Secretary of Defense Mark Esper 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.” (U.S. Embassy and Consulate in Vietnam, “Secretary of Defense Mark T. Esper Remarks at Diplomatic Academy of Vietnam,” November 20, 2019, Hanoi, Vietnam.)

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attempts to assert unlawful maritime claims at the expense of law-abiding nations.⁵⁵

• Article IV of the 1951 U.S.-Philippines Mutual Defense Treaty extends to armed attacks on Philippine armed forces, public vessels, or aircraft— including those of its Coast Guard—anywhere in the South China Sea.⁵⁶

• 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.

• 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.

• 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.

For examples of U.S. statements describing the U.S. position on issues relating to the SCS and ECS, see Appendix G.

Freedom of Navigation (FON) Program

Under the U.S. Freedom of Navigation (FON) program, U.S. Navy ships and other U.S. military forces challenge what the United States views as excessive maritime claims made by other countries, and otherwise carry out assertions of operational rights. The FON program began in 1979,⁵⁷ involves diplomatic activities as well as operational assertions by U.S. Navy ships and other military forces, 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 stated in 2015 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

55 In a November 20, 2019, speech in Hanoi, Secretary of Defense Mark Esper stated, “We will not accept attempts to assert unlawful maritime claims at the expense of law-abiding nations.” (U.S. Embassy and Consulate in Vietnam, “Secretary of Defense Mark T. Esper Remarks at Diplomatic Academy of Vietnam,” November 20, 2019, Hanoi, Vietnam.)

56 See, for example, U.S. Department of State, “U.S. Support for the Philippines in the South China Sea,” press statement dated August 19, 2024.

57 For a history of the origin of the FON program, see James Kraska, “An Archival History of the Creation and Early Implementation of the Freedom of Navigation Program,” Chapter 10 (pages 206-237) of Myron H. Nordquist, John Norton Moore, and Ronán Long, editors, Cooperation and Engagement in the Asia-Pacific Region, Center for Oceans Law and Policy, Volume: 23, 2020 (publication date: 28 November 28, 2019).

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all nations in international law by challenging the full range of excessive maritime claims asserted by some coastal States in the region. The importance of these operations cannot be overstated. Numerous countries across the Asia-Pacific region assert excessive maritime claims that, if left unchallenged, could restrict the freedom of the seas. These excessive claims include, for example, improperly-drawn straight baselines, improper restrictions on the right of warships to conduct innocent passage through the territorial seas of other States, and the freedom to conduct military activities within the EEZs of other States. Added together, EEZs in the USPACOM region constitute 38 percent of the world’s oceans. If these excessive maritime claims were left unchallenged, they could restrict the ability of the United States and other countries to conduct routine military operations or exercises in more than one-third of the world’s oceans.⁵⁸

DOD publishes an annual report on the FON program that includes a listing of FON operations conducted to challenge excessive maritime claims by various countries, including China. DOD’s report for FY2023 summarizes

excessive maritime claims that DoD challenged during the period of October 1, 2022, through September 30, 2023, to preserve the rights, freedoms, and uses of the sea and airspace guaranteed to all nations by international law. In sum, the United States challenged 29 excessive maritime claims of 17 claimants. The report cites in brackets each claimant’s specific laws, regulations, and other proclamations articulating the excessive maritime claims. To maintain the operational security of U.S. military forces, DoD Annual FON Reports include only general geographic information on the location of operational challenges and do not specify the precise number of challenges to each excessive maritime claim.⁵⁹

For additional information on the FON program, see Appendix H.

Taiwan Strait Transits

In addition to conducting FON operations in the Spratly and Paracel islands, U.S. Navy ships (and also occasionally U.S. Coast Guard cutters or allied navy ships) steam through the Taiwan Strait to assert navigational rights under international law.⁶⁰ The Taiwan Strait appears to have a minimum width (which occurs toward its northern end) of more than 67 nautical miles; at other points, its width is greater, and toward its southern end exceeds 120 nautical miles.⁶¹ Subtracting 12 nautical miles of territorial seas (i.e., what are commonly referred to as territorial waters) from either side of the strait leaves a central corridor of international waters running through the strait with an apparent minimum width of more than 43 nautical miles that is beyond the territorial sea

58 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 23-24.

59 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report, Fiscal Year 2023, generated on March 8, 2024, released on May 8, 2024, PDF page 3 of 6.

60 See, for example, Mallory Shelbourne, “U.S. Destroyer Sails Through Taiwan Strait Transit,” USNI News, August 22, 2024; Alex Wilson, “Guided-Missile Destroyer Makes Navy’s First Trip through Taiwan Strait in Over 3 Months,” Stars and Stripes, August 22, 2024; Beijing newsroom and Ben Blanchard, “China Says It Monitored, Warned US Destroyer in Taiwan Strait,” Reuters, August 22, 2024.

61 Source: CRS measurements of the strait’s width using the distance measurement tool of Google Maps (https://www.google.com/maps). The minimum width of more than 67 nautical miles that was found by CRS measurement is toward the strait’s northern end; the widths of more than 120 nautical miles are generally toward the strait’s southern end. The Google Maps distance measurement tool provides measurements in statute miles, which CRS converted into nautical miles.

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of any coastal state, where high seas freedoms of navigation and overflight apply in accordance with international law.⁶²

Issues for Congress

U.S. Strategy for Competing Strategically with China in SCS and ECS

Overview

Whether and how to compete strategically with China in the SCS and ECS is a choice for U.S. policymakers to make, based on an assessment of U.S. interests and the potential benefits and costs of engaging in such a competition in the context of overall U.S. policy toward China,⁶³ U.S. policy toward the Indo-Pacific,⁶⁴ and U.S. foreign policy in general.

A key issue for Congress is whether the Biden 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.

Potential Broader Goals

For observers who conclude that the United States should compete strategically with China in the SCS and ECS, potential broader U.S. goals for such a competition include but are not necessarily

62 For example, a statement issued on June 3, 2023, by the U.S. Navy’s 7th Fleet regarding a Taiwan Strait transit that was being conducted at that time by a U.S. Navy destroyer and a Canadian navy frigate stated that the transit was being conducted “through waters where high-seas freedoms of navigation and overflight apply in accordance with international law. The ships transit through a corridor in the Strait that is beyond the territorial sea of any coastal State.” (U.S. 7^th Fleet Public Affairs, “7^th Fleet Destroyer Transits Taiwan Strait,” June 3, 2023.) Two days later, following an incident during that transit in which a Chinese navy destroyer crossed in front of the U.S. Navy destroyer in an unsafe manner, a statement issued by the U.S. Indo-Pacific Command (USINDOPACOM) stated:

In accordance with international law, [the U.S. Navy destroyer] USS Chung-Hoon (DDG 93) and [the Canadian navy frigate] HMCS Montreal (FFH 336) conducted a routine south to north Taiwan Strait transit June 3 through waters where high seas freedoms of navigation and overflight apply. During the transit, [the] PLA(N) [i.e., Chinese navy] LUYANG III [class destroyer] DDG 132 (PRC LY 132) executed maneuvers in an unsafe manner in the vicinity of Chung-Hoon. The PRC LY 132 overtook Chung-Hoon on their [i.e., Chung-Hoon’s] port side and crossed their [i.e., Chung-Hoon’s] bow at 150 yards. Chung-Hoon maintained course and slowed to 10 kts to avoid a collision. The PRC LY 132 crossed Chung-Hoon’s bow a second time starboard to port at 2,000 yards and remained off Chung-Hoon’s port bow. The LY 132’s closest point of approach was 150 yards and its actions violated the maritime ‘Rules of the Road’ of safe passage in international waters. (U.S. Indo-Pacific Command Public Affairs, “USINDOPACOM Statement on Unsafe Maritime Interaction,” June 5, 2023.)

63 For more on overall U.S.-China relations, see CRS In Focus IF10119, China Primer: U.S.-China Relations, by Susan V. Lawrence and Karen M. Sutter, and CRS Report R41108, U.S.-China Relations: An Overview of Policy Issues, by Susan V. Lawrence.

64 For more on U.S. policy toward the Indo-Pacific, see CRS Insight IN11814, Biden Administration Plans for an Indo- Pacific Economic Framework, coordinated by Brock R. Williams; CRS In Focus IF11678, The “Quad”: Security Cooperation Among the United States, Japan, India, and Australia, coordinated by Emma Chanlett-Avery; CRS In Focus IF11052, The United Kingdom, France and the Indo-Pacific, by Bruce Vaughn, Derek E. Mix, and Paul Belkin.

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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;

• 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

• pursuing these goals as part of a larger U.S. strategy for competing strategically and managing relations with China.

Potential 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,

• initiating island-building or base-construction activities at Scarborough Shoal in the SCS,

• declaring straight baselines around land features it claims in the SCS,⁶⁵ or

• declaring an air defense identification zone (ADIZ) over the SCS;⁶⁶ and

65 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.

66 For more on the possibility of China declaring an ADIZ over the SCS, see, for example, Minnie Chan, “South China Sea: Beijing ‘Doesn’t Want to Upset Neighbours’ with Air Defence Zone,” South China Morning Post, November 25, 2020; Carl O. Schuster, “[Opinion] The Air Defense Identification Zone—China’s next South China Sea aggression?” Rappler, July 7, 2020; Aie Balagtas See and Jeoffrey Maitem, “US Watching if Beijing Declares Air Defense Zone in South China Sea,” BenarNews, June 24, 2020 (also published as BenarNews, “US Watching if Beijing Declares Air (continued...)

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• 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 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-PRC 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).

U.S. Strategy for Competing in SCS and ECS Given China’s Approach

China’s approach to maritime disputes in the SCS and ECS, and to strengthening its position over time in the SCS, discussed earlier in this report, raises 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 characterized by being 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.⁶⁷ A 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.

Defense Zone in South China Sea,” Radio Free Asia, June 24, 2020); Roy Mabasa, “US Commander: ADIZ over South China Sea Will Impact All Nations in Region,” Manila Bulletin, June 24, 2020; 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.

67 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 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.

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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 PRC activities in the ECS or SCS by moving to suspend China’s observer status on the Arctic Council.⁶⁸ In a May 6, 2019, speech in Finland, then-Secretary of State Michael Pompeo stated (emphasis added)

The United States is a believer in free markets. We know from experience that free and fair competition, open, by the rule of law, produces the best outcomes.

But all the parties in the marketplace have to play by those same rules. Those who violate those rules should lose their rights to participate in that marketplace. Respect and transparency are the price of admission.

68 For more on the Arctic Council in general, see CRS Report R41153, Changes in the Arctic: Background and Issues for Congress, coordinated by Ronald O'Rourke. Paragraph 37 of the Arctic Council’s rules of procedure states the following:

Once observer status has been granted, Observers shall be invited to the meetings and other activities of the Arctic Council unless SAOs [Senior Arctic Officials] decide otherwise. Observer status shall continue for such time as consensus exists among Ministers. Any Observer that engages in activities which are at odds with the Council’s [Ottawa] Declaration [of September 19, 1996, establishing the Council] or these Rules of Procedure shall have its status as an Observer suspended.

Paragraph 5 of Annex II of the Arctic Council’s rules of procedure—an annex regarding the accreditation and review of observers—states the following:

Every four years, from the date of being granted Observer status, Observers should state affirmatively their continued interest in Observer status. Not later than 120 days before a Ministerial meeting where Observers will be reviewed, the Chairmanship shall circulate to the Arctic States and Permanent Participants a list of all accredited Observers and up-to-date information on their activities relevant to the work of the Arctic Council. (Arctic Council, Arctic Council Rules of Procedure, p. 9. The document was accessed May 31, 2023, at https://oaarchive.arctic-council.org/handle/11374/940.

Paragraph 4.3 of the Arctic Council’s observer manual for subsidiary bodies states in part

Observer status continues for such time as consensus exists among Ministers. Any Observer that engages in activities which are at odds with the Ottawa Declaration or with the Rules of Procedure will have its status as an Observer suspended. (Arctic Council. Observer Manual for Subsidiary Bodies, p. 5. The document was accessed May 31, 2023, at https://oaarchive.arctic-council.org/handle/11374/939.)

See also Alyson JK Bailes, “Understanding The Arctic Council: A ‘Sub-Regional’ Perspective,” Journal of Military and Strategic Studies, Vol. 15, Issue 2, 2013: 48, accessed May 31, 2023, at https://ciaotest.cc.columbia.edu/journals/ jomass/v15i2/f_0030237_24448.pdf; Brianna Wodiske, “Preventing the Melting of the Arctic Council: China as a Permanent Observer and What It Means for the Council and the Environment,” Loyola of Los Angeles International and Comparative Law Review, Vol. 315, Issue 2, 2014 (November 1, 2014): 320, accessed May 31, 2023, at https://digitalcommons.lmu.edu/ilr/vol36/iss2/5/; Sebastian Knecht, “New Observers Queuing Up: Why the Arctic Council Should Expand—And Expel,” Arctic Institute, April 20, 2015; Evan Bloom, “Establishment of the Arctic Council,” undated, accessed May 31, 2023, at https://2009-2017.state.gov/e/oes/ocns/opa/arc/ac/ establishmentarcticcouncil/index.htm, which states, “The following paper was authored by Evan Bloom in July 1999 when serving as an attorney in the Office of the Legal Adviser at the U.S. Department of State. Mr. Bloom is now the Director of the Office of Oceans and Polar Affairs for the Bureau of Oceans and International Environmental and Scientific Affairs at the U.S. Department of State”; Kevin McGwin, “After 20 years, the Arctic Council Reconsiders the Role of Observers,” Arctic Today, October 24, 2018.

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And let’s talk about China for a moment. China has observer status in the Arctic Council, but that status is contingent upon its respect for the sovereign rights of Arctic states. The U.S. wants China to meet that condition and contribute responsibly in the region. But China’s words and actions raise doubts about its intentions.⁶⁹

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 are the contributions to a combined U.S.-allied- partner state strategy for competing strategically with China in the SCS and ECS that are made by allies such as Japan, the Philippines, Australia, the UK, France, and Germany, 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.⁷⁰

Until the later months of 2021, a particular question had concerned the kinds of actions that then- Philippine president Rodrigo Duterte might be willing to take, given what had been, until the later months of 2021, his frequently nonconfrontational policy toward China regarding the SCS. Since

69 State Department, “Looking North: Sharpening America’s Arctic Focus, Remarks, Michael R. Pompeo, Secretary of State, Rovaniemi, Finland, May 6, 2019,” accessed May 31, 2023, at https://2017-2021.state.gov/looking-north- sharpening-americas-arctic-focus/index.html.

70 See, for example, Akira Kitado, “Japan Boosts Defenses on Remote Islands Near Taiwan amid China Fears,” Nikkei Asia, March 31, 2024; Julian Ryall, “Japan to Help Improve Maritime Capabilities of 4 Asean States amid South China Sea Row,” South China Morning Post, February 13, 2024; Richard Javad Heydarian, “Indonesia, Philippines Draw Together vis-a-vis China,” Asia Times, January 12, 2024; JP Soriano, “France, SoKor [South Korea] Rally Behind PH [Philippines] in Boosting Maritime Defense,” GMA News, December 6, 2023; White House, “G7 Leaders’ Statement,” December 6, 2023; John Eric Mendoza, “PH, Vietnam Urge Compliance with UNCLOS in South China Sea,” Inquirer (Philippines), November 30, 2023; Julian Ryall, “Japan Military Aid Expands Southeast Asia Footprint,” Deutsche Welle (DW), November 22, 2023; Khanh Vu, “Vietnam Ramps Up South China Sea Island Expansion, Researchers Say,” Reuters, November 17, 2023; “Vietnam Ramps Up Spratly Island Dredging,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), November 15, 2023; Ismi Damayanti, “ASEAN Troops Launch Maritime Drills amid South China Sea Tension,” Nikkei Asia, September 19, 2023; Richard Javad Heydarian, “Australia-Philippines Pact Takes Hard New Aim at China,” Asia Times, September 11, 2023; Aaron-Matthew Lariosa, “Australia, Philippines Commit to Strategic Partnership, Pledge Joint Patrols,” USNI News, September 11, 2023; Tom Lowrey, “Australia and the Philippines to Run Joint Naval Patrols through South China Sea,” ABC News (Australia), September 8, 2023; Ryo Nakamura, “South Korea, India Rebuke Beijing over South China Sea Claims,” Nikkei Asia, August 21, 2023; Hyonhee Shin, Trevor Hunnicutt, and David Brunnstrom, “US, Japan and South Korea Condemn ‘Dangerous and Aggressive Actions’ by China,” Reuters, August 18, 2023; Tim Fish, “Update—Pushing back: Addressing Chinese Assertiveness in the South China Sea,” Jane’s Defence Weekly, May 26, 2023; Richard Javad Heydarian, “Philippines-Vietnam Teaming Up on China in South China Sea,” Asia Times, May 25, 2023; Jim Gomez, “Australia to Provide Surveillance Drones to Philippines amid South China Sea Tensions,” Associated Press, May 18, 2023. See also “Update: Who’s Taking Sides on China’s Maritime Claims?” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), originally published September 24, 2020, and updated periodically thereafter.

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the later months of 2021, and particularly since Ferdinand Marcos Jr. assumed the office of President of the Philippines on June 30, 2022, Philippine actions, while continuing to show an interest in seeking cooperative arrangements with China where possible,⁷¹ have also reflected a greater willingness to confront China regarding the SCS and to work with the United States and other countries in doing so.⁷² Philippine actions are discussed further in the section below on the Biden Administration’s strategy.

71 See, for example, Ramon Royandoyan, “Marcos Says South China Sea Claim Isn’t ‘Imaginary,’ Urges Diplomacy,” Nikkei Asia, July 22, 2024; Ramon Royandoyan and Yuki Fujita, “Philippines to Seek Diplomatic Solutions in South China Sea,” Nikkei Asia, July 8, 2024; Mikhail Flores and Karen Lema, “Philippines President Orders De-Escalation in South China Sea, Military Chief Says,” Reuters, July 4, 2024; Jacob Lazaro and Nestor Corrales, “PH, China Ministers Talk De-Escalation—But ‘Monster’ Back in EEZ,” Philippine Daily Inquirer, July 4, 2024 (referring to a very large China Coast Guard cutter sometimes called the Monster); Sebastian Strangio, “Philippines Says it Wants ‘Dialogue’ With China Following Maritime Clash,” Diplomat, June 26, 2024; Neil Jerome Morales, “Philippines Says It Wants to Work with China to Manage Tensions in South China Sea,” Reuters, June 25, 2024; Jim Gomez, “Philippines Says It Won’t Back Down, But Won’t Start a War, after Clash with Chinese Coast Guard,” Associated Press, June 23, 2024; Karishma Vaswani, “Stuck Between Two Superpowers, Manila Is Speaking Up,” Bloomberg, May 31, 2024; Neil Jerome Morales and Karen Lema, “Philippines Will Continue Dialogue with China to Ease South China Sea Tensions, Says President,” Reuters, April 8, 2024; Karen Lema, “Philippines to Boost Diplomacy and Defence Capability as South China Sea ‘Countermeasures,’” Reuters April 1, 2024; Su-Lin Tan, “Philippines Can’t Deny ‘Shared DNA’ with Beijing Even as South China Sea Sours Ties: Marcos Jnr,” South China Morning Post, March 4, 2024; SCMP’s Asia desk, “South China Sea: Philippines Alarmed by 200 Chinese Vessels at Mischief Reef, Marcos Urges Dialogue,” South China Sea Morning Post, January 31, 2024; Clarissa Batino and Cecilia Yap, “Marcos Asks Duterte to Talk Amid Cracks in Philippine Alliance,” Bloomberg, January 7, 2024; Karen Lema and Neil Jerome Morales, “Philippines Remains Open to Diplomacy with China—National Security Adviser,” Reuters, January 5, 2024.

72 See, for example, Mikhail Flores and Karen Lema, “Philippines Says Pact with Japan Takes Defence Ties to Unprecedented High,” Reuters, July 8, 2024; Don McLain Gill, “Marcos’s Annual Address Shows Steely Resolve On Maritime Rights,” Nikkei Asia, July 29, 2024; Dylan Butts, “Philippines to ‘Respond Appropriately’ to Chinese ‘Harassment’ in South China Sea, Military Chief Says,” CNBC, July 5, 2024; Jim Gomez, “Philippine Military Chief Warns His Forces Will Fight Back If Assaulted Again in Disputed Sea,” Associated Press, July 4, 2024; Ramon Royandoyan, “Philippines Demands China Pay $1m over South China Sea Clash in June,” Nikkei Asia, July 4, 2024; Jim Gomez, “Philippines Says It Won’t Back Down, But Won’t Start a War, after Clash with Chinese Coast Guard,” Associated Press, June 23, 2024; Karen Lema and Greg Torode, “In South China Sea Dispute, Philippines’ Bolder Hand Tests Beijing,” Reuters, June 19, 2024; Neil Jerome Morales, “Philippines Says to Resist China's ‘Reckless Behaviour’ in South China Sea,” Reuters, June 17, 2024; Rebecca Tan, Yasmin Coles, and Martin San Diego, “Philippines Turns Up Heat over Disputed Sea but Confronts Formidable Foe,” Washington Post, June 14, 2024; Neil Jerome Morales, “Philippines Asserts Security Independence amid South China Sea Tension,” Reuters, June 8, 2024; Andreo Calonzo and Peter Martin, “Marcos’ Surprising Embrace of US Puts China on Back Foot,” Bloomberg, May 31, 2024; Jim Gomez, “Philippines Says It Will Forge Security Alliances and Stage Combat Drills Despite China’s Opposition,” Associated Press, May 24, 2024; Neil Jerome Morales, “Philippines to Vigorously Defend Territory, President Says,” Reuters, May 18, 2024; Karen Lema, “Philippines to Boost Diplomacy and Defence Capability as South China Sea ‘Countermeasures,’” Reuters April 1, 2024; Jim Gomez, “Philippine President Warns of Countermeasures in Response to Chinese Aggression at Sea,” Associated Press, March 28, 2024; Neil Jerome Morales, “Philippines Says It Will Not Yield to Submission in Row with ‘Patronising’ China,” Reuters, March 28, 2024; Neil Jerome Morales and Yew Lun Tian, “Philippines Ups Stakes in China Row, Vows Countermeasures to Coastguard ‘Attacks,’” Reuters, March 28, 2024; Sui-Lee Wee and Camille Elemia, “Standing Up to China, Philippine Leader Courts New Network of Partners,” New York Times, March 16 (updated March 21), 2024; Regine Cabato, “Philippines Strikes Security Deals as Tensions Rise with China at Sea,” Washington Post, March 9, 2024; Karen Lema and Mikhail Flores, “Philippines to Push Back against China If Maritime Interests Ignored, Marcos Says,” Reuters, March 4, 2024; Richard Javad Heydarian, “Philippines Arming Up for D-Day with China,” Asia Times, February 21, 2024; Andreo Calonzo, “Philippines Vows to Respond to China’s ‘Dangerous’ Moves at Sea,” Bloomberg, February 16, 2024; Cliff Harvey Venzon, “Philippines Won’t Back Down on Sea Claims, Top Envoy Says,” Bloomberg, February 15, 2024; Raissa Robles, “Philippines to Maintain ‘Assertive Transparency’ over South China Sea Row against Beijing’s ‘Bullying Behaviour’,” South China Morning Post, February 14, 2024; Ramon Royandoyan, “Philippines ‘Breaking from Its Shell’ with Submarine Purchase,” Nikkei Asia, February 2, 2024; Karen Lema, “Philippines Plans to Buy Submarines to Defend Sovereignty in South China Sea—Senior Official,” Reuters, February 1, 2024; Cliff Harvey Venzon, “Philippines Plans $35 Billion Defense Upgrade in Sea Claims Push,” Bloomberg, February 1, 2023; Aadil (continued...)

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Certain U.S. actions appear intended in part to encourage U.S. allies and partners in Southeast Asia to take stronger steps to challenge or oppose China on matters relating to the SCS.⁷³ U.S. actions to provide maritime-related security assistance to countries in the region have been carried out in part 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 2015⁷⁴ and subsequently legislated by Congress⁷⁵ 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.⁷⁶

Some observers have argued that there may be limits to how far U.S. allies and partners in the region might be willing to go to challenge or oppose China on matters relating to the SCS, particularly if doing so could antagonize China or create a risk of becoming involved in a U.S.-

Brar, “US Ally's New Weapon To Counter China’s Maritime Threat,” Newsweek, January 29 (updated January 30), 2024; Gabriel Dominguez, “Manila Gets Tough in the South China Sea as a Showdown Looms,” Japan Times, January 21, 2024; Al Jazeera and news agencies, “Philippines Plans Military Upgrades to Disputed South China Sea Outposts,” Al Jazeera, January 15, 2024; Mikhail Flores, “Philippines to Develop Islands in South China Sea - Military Chief,” Reuters, January 15, 2024; Cliff Harvey Venzon, “Philippines Plans to Develop Outposts in South China Sea,” Bloomberg, January 15, 2024.

73 See, for example, Poppy McPherson, Karen Lema, and Devjyot Ghoshal, “How the U.S. Courted the Philippines to Thwart China,” Reuters, November 29, 2024; Hau Dinh and Yves Dam Van, “US to ASEAN: Reconsider Deals with Blacklisted China Firms,” Associated Press, September 10, 2020; Lynn Kuok, “Southeast Asia Stands to Gain as US Hardens South China Sea Stance,” Nikkei Asian Review, August 17, 2020; Bhavan Jaipragas, “US Shift on South China Sea May Help Asean’s Quiet ‘Lawfare’ Resolve Dispute,” South China Morning Post, July 17, 2020. In a September 26, 2023, speech at the Harvard, Secretary of the Navy Carlos Del Toro stated:

In 2020, when China embarked on a concerted effort to intimidate Malaysia out of its rightful offshore resources, the U.S. Seventh Fleet’s Task Force 76 began a remarkable prototype operation, pioneering a new approach to support our partners’ civilian vessels in standing up to China’s coercive maritime insurgency in the South China Sea. U.S. Navy and Marine Corps units from several ship classes took part—including a littoral combat ship, a destroyer, a cruiser, and the large-deck amphibious assault ship USS America (LHA 6) with its full complement of Marines. Joining forces with a frigate from the Royal Australian Navy, Task Force 76 established and maintained a persistent presence in determined support of a partner’s sovereign, internationally- recognized rights. China backed down. (U.S. Navy, “SECNAV Delivers Remarks at Harvard Kennedy School,” speech by Carlos Del Toro, September 26, 2023.)

74 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 May 31, 2023, 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).

75 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).

76 See, for example, White House, “Joint Leaders’ Statement: Elevating United States-Vietnam Relations to a Comprehensive Strategic Partnership,” September 11, 2023; Peter Baker and Katie Rogers, “Biden Forges Deeper Ties With Vietnam as China’s Ambition Mounts,” New York Times, September 10, 2023; Jon Emont, Catherine Lucey, and Katy Stech Ferek, “Biden Seeks Stronger Vietnam Ties in Bid to Counter China,” Wall Street Journal, September 10, 2023; Matt Viser and Meryl Kornfield, “Biden Visits Vietnam to Bolster Alliance Confronting China,” Washington Post, September 10, 2023; Sui-Lee Wee, “Vietnam and U.S. Forge Deeper Ties as Worries Rise About China,” New York Times, September 8, 2023.

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China dispute or confrontation.⁷⁷ For U.S. policymakers, a key question is how effective the steps taken 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.

Trump Administration’s Strategy

The Trump Administration’s strategy for competing strategically with China in the SCS and ECS included but was not necessarily limited to the following general lines of effort:⁷⁸

• exposing and criticizing China’s actions in the SCS (including so-called naming- and-shaming actions),⁷⁹ and reaffirming the U.S. position on issues relating to the SCS and ECS, on a recurring basis;

• imposing economic sanctions on PRC firms and officials linked to China’s activities in the SCS;

• 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;⁸⁰

• 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 PRC military forces in the Indo-Pacific region.⁸¹

• 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.⁸²

Specific actions taken by the Trump Administration included the following, among others:

• 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.⁸³

77 See, for example, Derek Grossman, “Biden Hopes for Vietnam Breakthrough, Washington and Hanoi Have Been Inching Closer, But It’s a Complicated Dance,” Foreign Policy, May 9, 2023.

78 For additional discussion of the Trump Administration’s strategy for competing strategically with China in the SCS and ECS, see, for example, Felix K. Chang, “From Pivot to Defiance: American Policy Shift in the South China Sea,” Foreign Policy Research Institute, August 24, 2020; Michael McDevitt, “Washington Takes a Stand in the South China Sea,” CNA (Arlington, VA), September 8, 2020.

79 See, for example, Wendy He, and Haridas Ramasamy, “Naming and Shaming China: America’s Strategy of Rhetorical Coercion in the South China Sea,” Contemporary Southeast Asia, vol. 42, no. 3, 2020: 317–345.

80 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.

81 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.

82 See, for example, Eileen Ng, “US Official Urges ASEAN to Stand Up to Chine in Sea Row,” Associated Press, October 31, 2019.

83 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 (continued...)

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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.⁸⁴

• In January 2019, the then-U.S. Chief of Naval Operations, Admiral John Richardson, reportedly warned his PRC 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 PRC navy ships.⁸⁵

• On March 1, 2019, then-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].”⁸⁶ (For more on this treaty, see Appendix B.)

• On July 13, 2020, then-Secretary Pompeo issued a statement that strengthened, elaborated, and made more specific certain elements of the U.S. position regarding China’s actions in the SCS. (For the text of this statement, see Appendix G.)

• On August 26, 2020, then-Secretary Pompeo announced that the United States had begun “imposing visa restrictions on People’s Republic of China (PRC) individuals responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of disputed outposts in the South China Sea, or the PRC’s use of coercion against Southeast Asian claimants to inhibit their access to offshore resources.”⁸⁷

• On January 14, 2021, then-Secretary Pompeo announced additional sanctions against PRC officials, including executives of state-owned enterprises and officials of the Chinese Communist Party and China’s navy “responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of

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, 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.

84 Jake Maxwell Watts, “Bolton Warns China Against Limiting Free Passage in South China Sea,” Wall Street Journal, November 13, 2018.

85 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.

86 State Department, Remarks With Philippine Foreign Secretary Teodoro Locsin Jr., Remarks [by] Michael R. Pompeo, Secretary of State, March 1, 2019, accessed May 31, 2023, at https://2017-2021.state.gov/remarks-with- philippine-foreign-secretary-teodoro-locsin-jr/index.html.

87 Department of State, “U.S. Imposes Restrictions on Certain PRC State-Owned Enterprises and Executives for Malign Activities in the South China Sea,” press statement, Michael R. Pompeo, Secretary of State, August 26, 2020.

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disputed outposts in the South China Sea, or the PRC’s use of coercion against Southeast Asian claimants to inhibit their access to offshore resources in the South China Sea.”⁸⁸

• Also on January 14, 2021, the Commerce Department added China’s state-owned Chinese National Offshore Oil Corporation (CNOOC) to the Entity List, restricting exports to that firm, citing CNOOC’s role in “helping China intimidate neighbors in the South China Sea.”⁸⁹

Biden Administration’s Strategy

Overview

The Biden Administration has continued a number of the general lines of effort listed above in the section on the Trump Administration’s strategy. Among other things, the Biden Administration is taking steps to expose China’s actions in the SCS,⁹⁰ has reaffirmed the U.S. position on issues relating to the SCS and ECS, worked to strengthen ties with allies and partners in the region, and continued U.S. efforts to provide maritime-related security assistance to those countries.⁹¹ The Navy and Air Force have continued to operate in the broader waters of the SCS and the airspace above,⁹² and the Navy has continued to conduct FON operations in the SCS and Taiwan Strait transits,⁹³ with some observers comparing the frequency of FON operations and Taiwan Strait transits to their frequency during the Trump Administration.

Cooperation with the Philippines

As noted earlier, since the later months of 2021, and particularly since Ferdinand Marcos Jr. assumed the office of President of the Philippines on June 30, 2022, Philippine actions, while

88 Department of State, “Protecting and Preserving a Free and Open South China Sea,” January 14, 2021. See also Matthew Lee, “US Imposes New Sanction on Beijing over South China Sea,” Associated Press, January 14, 2021.

89 Department of Commerce, “Commerce Adds China National Offshore Oil Corporation to the Entity List and Skyrizon to the Military End-User List,” January 14, 2021. See also Ben Lefebvre, “U.S. Bans Exports to China's State-Owned Oil Company CNOOC,” Politico Pro, January 14, 2021.

90 Philip Heijmans, “US Spends Big to Highlight Beijing’s Tactics in South China Sea,” Bloomberg, March 6, 2024.

91 See, for example, Ryo Nakamura, “U.S. Seeks Military Access in Philippine Eastern Seaboard,” Nikkei Asia, September 23, 2023; Seth Robson, “US, Vietnam Coast Guard Cooperation Grows Tighter after Biden Visit,” Stars and Stripes, September 22, 2023; Joe Gould, “U.S. to Announce Donation of Cargo Aircraft, Cutters to the Philippines,” Politico Pro, May 1, 2023; John Bradford, “U.S. Coast Guard Is Helping Southeast Asians Protect Their Seas,” Foreign Policy, March 9, 2023; Benar News, “In Historic Visit, Harris Reiterates US Support for Philippines in Sea Dispute,” Radio Free Asia, November 22, 2022; Jason Gutierrez, “In Philippines, Harris Promises Support and Denounces China,” New York Times, November 22, 2022; Feliz Solomon, “Kamala Harris Seeks to Strengthen Philippines Alliance Amid Fraught China Relations,” Wall Street Journal, November 22, 2022; Niniek Karmini, “US Pushes Defense Ties with Indonesia as China Strengthens,” Associated Press, November 21, 2022; Doug G. Ware, “In Jakarta, Austin Promises More Military Exercises with Indonesia to Ensure ‘Free and Open’ Indo-Pacific,” Stars and Stripes, November 21, 2022; Steve Holland and David Brunnstrom, “Biden, Philippines' Marcos Discuss Tensions in South China Sea,” Reuters, September 22, 2022; Gregory B. Poling, “The United States Is Deeply Invested in the South China Sea, As China Postures, Washington Remains Committed,” Foreign Policy, August 14, 2022.

92 See, for example, Willard Cheng, “US Plans to Increase Presence in South China Sea,” ABS-CBN News, October 18, 2022.

93 See, for example, Alex Wilson, “Navy Sends Destroyer through Taiwan Strait Less than a Week after Chinese Exercises,” Stars and Stripes, April 17, 2023; Heather Mongilio, “U.S. Will Continue Taiwan Strait Transits, FONOPs in Western Pacific Despite Growing Tension with China,” USNI News, August 8, 2022; Al Jazeera, “US to Conduct ‘Air and Maritime Transits’ in Taiwan Strait,” Al Jazeera, August 13, 2022.

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continuing to show an interest in seeking cooperative arrangements with China where possible,⁹⁴ have also reflected a greater willingness to confront China regarding the SCS.⁹⁵ U.S.-Philippine security cooperation, which was constrained during Duterte’s period as president, has strengthened substantially under President Marcos.⁹⁶ Reported developments in 2023 and 2024 include the following:

• In February 2023, the United States and the Philippines announced an agreement to expand their Enhanced Defense Cooperation Arrangement (EDCA) to permit U.S. military access to four additional military facilities in the Philippines.⁹⁷ In April 2023, the two governments identified the four additional sites.⁹⁸

• Also in February 2023, the United States and the Philippines agreed to restart U.S.-Philippine joint patrols in the SCS, which had been suspended in 2016, during Duterte’s period as president. The Philippines reportedly has also held talks with Japan and Australia about conducting joint patrols in the SCS with those countries.⁹⁹

94 See footnote 71.

95 See footnote 72.

96 See, for example, Nick Aspinwall, “The Philippines Is Washington’s New Front Line Against China,” Foreign Policy, August 15, 2024; Pia Lee-Brago, “China Coast Guard halts Filipino resupply attempts at Escoda Shoal,” Philippine Star, July 27, 2024; Niharika Mandhana, “The Dark-Horse Alliance Racing Forward to Take On China,” Wall Street Journal, April 29, 2024; Matthew Lee, “US and Philippines Step up Strategic Partnership as China Threats Loom in South China Sea,” Associated Press, April 12, 2024; Karen Lema and Mikhail Flores, “US Considering Seeking Access to More Philippine Bases, Admiral Says,” Reuters, September 14, 2023; Cliff Harvey Venzon, “US, Philippines Plan Upgrades in Airport, Navy Base Near Taiwan,” Bloomberg, September 13, 2023; Aaron-Matthew Lariosa, “U.S., Philippines Forces Training in Tandem As Countries’ Alliance Expands,” USNI News, July 18, 2023; Sayumi Take, “Philippines Boosting U.S., Japan Security Ties: Foreign Minister,” Nikkei Asia, May 16, 2023; Daniel Heng, “Philippines’ New Military Deal with US: Will It Tilt Power Balance in South China Sea?” Channel News Asia, May 14, 2023; Seth Robson, “Revived Alliance Brings US Forces Back to Subic Bay in the Philippines,” Stars and Stripes, May 8, 2023; Jeff Mason, Trevor Hunnicutt, and David Brunnstrom, “Amid China Pressure, US and Philippines Recommit to Security Alliance,” Reuters, May 2, 2023; Ryo Nakamura, “U.S. and Philippines Rapidly Draw Near to Counter China,” Nikkei Asia, May 2, 2023; Aamer Madhani and Jim Gomez, “Biden: US-Philippines ‘Ironclad’ Partners amid China Tension,” Washington Post, May 1, 2023; Ryo Nakamura, “U.S. ‘Ready’ to Aid Philippine Resupplies in South China Sea: Admiral,” Nikkei Asia, May 1, 2023; Ellen Nakashima, “Philippine President’s White House Visit Reflects Sharp Upturn in Ties,” Washington Post, May 1, 2023; Tom Rogan, “Philippines-US Alliance Moves past Duterte Dysfunction,” Washington Examiner, May 1, 2023; Katie Rogers, “Biden Meets Marcos in Washington Amid Tensions With China,” New York Times, May 1, 2023; Demetri Sevastopulo, “Joe Biden Says US Commitment to Defending Philippines Is ‘Iron Clad,’ Financial Times, May 1, 2023.

97 Jim Garamone, “U.S.-Philippine Alliance Strengthens as it Enters New Phase,” DOD News, February 2, 2023.

98 Department of Defense, “Philippines, U.S. Announce Locations of Four New EDCA Sites,” news release, April 3, 2023; Department of Defense, “Readout of U.S.-Philippines 2+2 Ministerial Dialogue,” news release, April 11, 2023; Rene Acosta, “Philippines Announce 4 New Locations to Host U.S. Troops,” USNI News, April 3, 2023; Jim Gomez, “Philippines Names 4 New Camps for US Forces amid China Fury,” Associated Press, April 3, 2023; Karen Lema, “Philippines Reveals Locations of 4 New Strategic Sites for U.S. Military Pact,” Reuters, April 3, 2023.

99 Reuters, “Joint Philippines-U.S. Patrols in South China Sea May Begin by Third Quarter – Envoy,” Reuters, May 8, 2023; Karen Lema, “Japan, Australia May Conduct South China Sea Patrols with U.S., Philippine—Ambassador,” Reuters, February 28, 2023; Agence France Presse, “US ‘Committed’ To Joint Sea Patrols With Philippines: US Navy Chief,” Barron’s, February 22, 2023; Karen Lema, “Australia, Philippines Discuss joint South China Sea Patrols,” Reuters, February 22, 2023; Jim Gomez and Edna Tarigan, “Philippines Eyes South China Sea Patrols with US, Australia,” Associated Press, February 22, 2023; Karen Lema, “Philippines, U.S. Discuss Joint Coast Guard Patrols in South China Sea,” Reuters, February 20, 2023. See also Sebastian Strangio, “Joint South China Sea Patrols Could Begin in 2023, Philippine Official Says,” Diplomat, August 10, 2023; Jason Gutierrez (Benar News), “Philippines, US to Launch Joint South China Sea Patrols This Year: Official,” Radio Free Asia, August 9, 2023; Kristine Daguno-Bersamina, “Philippines, US Expected to Start Joint (continued...)

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• In March 2023, it was reported that “Japan, the Philippines and the United States plan to set up a trilateral framework involving their national security advisers” for “boosting deterrence against China and preparing for a potential crisis over Taiwan.”¹⁰⁰

• Also in May 2023, the United States and the Philippines released updated bilateral defense guidelines¹⁰¹ that, among other things, addressed the circumstances under which U.S. forces would come to the aid of the Philippines under the 1951 U.S.-Philippines mutual defense treaty.¹⁰²

• In early June 2023, Philippine coast guard cutters participated in a first-ever trilateral exercise with U.S. and Japanese coast guard cutters that took place in SCS waters off Bataan province.¹⁰³

• In November 2023, the United States and Philippine militaries began joint air and sea patrols in the SCS.¹⁰⁴

• In January 2024, it was reported that “an air base in the Philippines is set to receive a major upgrade to accommodate U.S. aircraft under a plan to strengthen deterrence against China. Already the site of many U.S.-funded improvements through the 2014 Enhanced Defense Cooperation Agreement (EDCA) between the United States and the Philippines, the Philippine Air Force’s Basa Air Base’s latest project will be a 625,000-square-foot transient parking apron.”¹⁰⁵

• Also in January 2024, it was reported that “the Philippines and the US plan to hold what could be their largest military exercises in April, in a show of strength of their alliance amid heightened tensions in the South China Sea.”¹⁰⁶

Patrols in West Philippine Sea by Year-End—NSC,” Philippine Star, August 5, 2023; Yusuke Takeuchi and Yukihiro Sakaguchi, “U.S., Philippines and Japan eye regular South China Sea exercises,” Nikkei Asia, June 17, 2023.

100 Kyodo News, “Japan, Philippines, U.S. to Set Up 3-Way Security Framework,” Kyodo News, March 28, 2023. See also Alan Robles, and Raissa Robles, “South China Sea: Philippines, US, Japan to Step Up Maritime Cooperation to Deter Beijing’s Aggression,” South China Morning Post, April 13, 2024; Mark Magnier, “Biden-Kishida-Marcos Jnr Meeting Shows ‘Ironclad’ Support for Philippines amid China Confrontations,” South China Morning Post, April 11, 2024; Ken Moriyasu and Ramon Royandoyan, “First U.S.-Japan-Philippines Trilateral to Address China’s ‘Gray Zone’ Tactics,” Nikkei Asia, April 1, 2024; Hal Brands, “Biden Counters China by Partnering Japan and the Philippines,” Bloomberg, March 27, 2024.

101 The United States and the Republic of the Philippines Bilateral Defense Guidelines, undated, 6 pp., accessed June 5, 2023, at https://media.defense.gov/2023/May/03/2003214357/-1/-1/0/THE-UNITED-STATES-AND-THE- REPUBLIC-OF-THE-PHILIPPINES-BILATERAL-DEFENSE-GUIDELINES.PDF.

102 See, for example, Felix K. Chang, “America and the Philippines Update Defense Guidelines,” Foreign Policy Research Institute (FPRI), May 24, 2023.

103 Yuichi Shiga, “Japan, U.S., Philippines Reinforce Collaboration in Marine Security,” Nikkei Asia, June 2, 2023; CNN Philippines Staff, “PH, Japan, and US to Hold First Trilateral Joint Coast Guard Drills in June,” CNN, May 29, 2023; Andreo Calonzo, “US, Japan, Philippines to Hold Drills Amid China Tensions,” Bloomberg, May 28 (updated May 29), 2023; Rene Acosta, “Philippine Coast Guard Will Hold First-Ever Trilateral Exercise with U.S., Japan,” USNI News, May 23, 2023.

104 Mikhail Flores and Karen Lema, “Philippines Launches Joint Sea, Air Patrols with US Military,” Reuters, November 21, 2023; Kathrin Hille, “US and Philippines Launch Joint Air and Sea Patrols to Counter China,” Financial Times, November 21, 2023; Aaron-Matthew Lariosa, “U.S., Philippines Begin Three Days of Joint Patrols in the South China Sea,” USNI News, November 21, 2023.

105 Aaron-Matthew Lariosa, “Philippine Air Base Gets U.S.-Funded Upgrade Under China Deterrence Plan,” USNI News, January 29, 2024.

106 Ditas B Lopez, “Philippines Eyes Expanded Military Drills With US in April,” Bloomberg, January 30, 2024.

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Tables Showing Reported SCS FON Operations and Taiwan Strait Transits

Table 2 and Table 3 show reported U.S. Navy FON operations during the Trump and Biden Administrations, respectively.¹⁰⁷ Reported FON operations do not necessarily include all FON operations. Table 4 shows reported annual numbers of U.S. Navy FON operations in the SCS and Taiwan Strait transits (TSTs) conducted by Commander, U.S. Pacific Fleet (CPF) forces from 2012 through 2023. Note that the data in Table 2 and Table 3 do not entirely agree with the data in Table 4. Figure 3 shows the approximate reported locations of some FON operations in 2016- 2019.

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 7, 2018 Paracel Islands McCampbell (DDG-85)

January 17, 2018 Scarborough Shoal Hopper (DDG-70)

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

May 27, 2018 Tree, Lincoln, Triton, and Woody islands in Paracel Islands

Antietam (CG-54) and Higgins (DDG-76)

The U.S. Navy reportedly considers that the PRC 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 Islands

Decatur (DDG-73) This operation led to a tense encounter between the Decatur and a PRC destroyer.

November 26, 2018 Paracel Islands Robert Smalls (CG-62) (ex-Chancellorsville)

January 7, 2019 Tree, Lincoln, and Woody islands in Paracel Islands

McCampbell (DDG-85)

February 11, 2019 Mischief Reef in Spratly Islands Spruance (DDG-111) and Preble (DDG-88)

May 6, 2019 Gaven and Johnson Reefs in Spratly Islands

Preble (DDG-88) and Chung Hoon (DDG-93)

May 19, 2019 Scarborough Shoal in Spratly Islands

Preble (DDG-88)

August 28, 2019 Fiery Cross Reef and Mischief Reef in Spratly Islands

Wayne E. Meyer (DDG-108)

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)

107 See also Gina Harkins, “US Military Operations Challenging China's Territorial Claims Peaked Under Trump,” Military.com, March 22, 2021.

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Date Location in SCS U.S. Navy Ship Notes

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 Paracel Islands

Mustin (DDG-89)

July 14, 2020 Cuarteron Reef and Fiery Cross Reef in Spratly Islands

Ralph Johnson (DDG-114)

August 27, 2020 Paracel Islands Mustin (DDG-89)

October 9, 2020 Paracel Islands John S. McCain (DDG-56)

December 22, 2020 Spratly Islands John S. McCain (DDG-56) The operation was directed against excessive maritime claims by the PRC, Taiwan, and Vietnam.

December 24, 2020 Con Dao Islands John S. McCain (DDG-56) The operation was directed against excessive maritime claims by Vietnam. The islands, which are part of Vietnam, are located about 150 miles south of Ho Chi Minh City.

Source: Table prepared by CRS based on press reports about each operation. Reported FON operations do not necessarily include all FON operations. 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-controlled 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.) On February 27, 2023, announced that CG-62, originally named Chancellorsville, would be renamed Robert Smalls. On March 1, 2023, CG-62’s listing in the Naval Vessel Register (https://www.nvr.navy.mil, accessed June 5, 2023) was updated to reflect the change. For further discussion of change in the ship’s name, see CRS Report RS22478, Navy Ship Names: Background for Congress, by Ronald O'Rourke. For additional tables showing separate compilations of U.S. FON and forward presence operations in the SCS and Taiwan Strait from October 2015 to July 2024, see Raul (Pete) Pedrozo and James Kraska, “U.S. Freedom of Navigation and Forward Presence Operations in the South China Sea and Taiwan Strait October 2015 to July 2024,” International Law Studies, vol. 103, 2024: 385-395.

In general, China has objected to U.S. Navy FON operations in the SCS, sometimes characterizing them as illegal (a characterization the United States rejects), and often stating that it sent PRC 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 PRC Navy ship that was sent to warn it off.¹⁰⁸

108 For the discussion of this tense encounter, see the paragraph ending in footnote 134 and the citations at that footnote.

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Table 3. Reported FON Operations in SCS During Biden Administration

Details shown are based on press reports

Date Location in SCS U.S. Navy Ship Notes

February 5, 2021 Paracel Islands John S. McCain (DDG-56) The operation was directed against excessive maritime claims by the PRC, Taiwan, and Vietnam.

February 17, 2021 Spratly Islands Russell (DDG-59) This operation was directed against unlawful restrictions on innocent passage by the PRC, Taiwan, and Vietnam.

May 20, 2021 Paracel Islands Curtis Wilbur (DDG-54)

July 12, 2021 Paracel Islands Benfold (DDG-65)

September 8, 2021 Mischief Reef in Spratly Islands

Benfold (DDG-65)

January 20, 2022 Paracel Islands Benfold (DDG-65) This operation was directed against unlawful restrictions on innocent passage by the PRC, Taiwan, and Vietnam, and straight baselines declared by the PRC.

July 13, 2022 Paracel Islands Benfold (DDG-65)

July 16, 2022 Spratly Islands Benfold (DDG-65)

November 29, 2022 Spratly Islands Robert Smalls (CG-62) (ex-Chancellorsville)

March 24, 2023 Paracel Islands Milius (DDG 69)

April 10, 2023 Mischief Reef in Spratly Islands

Milius (DDG 69)

November 3, 2023 Spratly Islands Dewey (DDG-105)

November 25, 2023 Paracel Islands Hopper (DDG 70) This operation was directed against restrictions on innocent passage imposed by the PRC, Taiwan, and Vietnam.

May 10, 2024 Paracel Islands USS Halsey (DDG 97) This operation was directed against restrictions on innocent passage imposed by the PRC, Taiwan, and Vietnam, and straight baselines declared by the PRC.

Source: Table prepared by CRS based on press reports about each operation. Reported FON operations do not necessarily include all FON operations. Note: Reported dates may vary by one day due to the difference in time zones between the United States and the SCS. On February 27, 2023, announced that CG-62, originally named Chancellorsville, would be renamed Robert Smalls. On March 1, 2023, CG-62’s listing in the Naval Vessel Register (https://www.nvr.navy.mil, accessed June 5, 2023) was updated to reflect the change. For further discussion of change in the ship’s name, see CRS Report RS22478, Navy Ship Names: Background for Congress, by Ronald O'Rourke. For additional tables showing separate compilations of U.S. FON and forward presence operations in the SCS and Taiwan Strait from October 2015 to July 2024, see Raul (Pete) Pedrozo and James Kraska, “U.S. Freedom of Navigation and Forward Presence Operations in the South China Sea and Taiwan Strait October 2015 to July 2024,” International Law Studies, vol. 103, 2024: 385-395.

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Table 4. Reported Numbers of U.S. Navy SCS FONOPs and Taiwan Strait Transits

Year SCS FONOPs Taiwan Strait transits

2012 5 9

2013 2 12

2014 3 4

2015 2 1

2016 3 12

2017 6 3

2018 5 3

2019 7 9

2020 8 13

2021 5 15

2022 5 13

2023 4 12

Sources: For 2012 through 2020: U.S. Navy information paper, “Taiwan Strait Transit (TST) passages and Freedom of Navigation operations (FONOPS) conducted by CPF [Commander, U.S. Pacific Fleet] forces in the South China Sea (SCS) from CY 2012 through 17 Feb 2021,” undated, provided by Navy Office of Legislative Affairs to CRS on February 24, 2021. For 2021 and 2022: email from Navy Office of Legislative Affairs, September 13, 2023, providing figures from DOD’s J3 Operations Directorate. For 2023: email from Navy Office of Legislative Affairs, February 2, 2024. For additional tables showing separate compilations of U.S. FON and forward presence operations in the SCS and Taiwan Strait from October 2015 to July 2024, see Raul (Pete) Pedrozo and James Kraska, “U.S. Freedom of Navigation and Forward Presence Operations in the South China Sea and Taiwan Strait October 2015 to July 2024,” International Law Studies, vol. 103, 2024: 385-395.

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Figure 3. Approximate Reported Locations of FONOPs in 2016-2019

Source: Illustration accompanying Karen Leigh, Peter Martin and Adrian Leung, “Troubled Waters: Where the U.S. and China Could Clash in the South China Sea,” Bloomberg, December 17, 2020.

As an example of a statement regarding a U.S. FON operation, the U.S. Navy 7^th Fleet stated, in regard to the May 10, 2024, FON operation shown in Table 3, that

On 10 May, USS Halsey (DDG 97) asserted navigational rights and freedoms in the South China Sea near the Paracel Islands, consistent with international Law. At the conclusion of

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the operation, USS Halsey exited the excessive claim and continued operations in the South China Sea. This freedom of navigation operation (“FONOP”) upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging the restrictions on innocent passage imposed by the People’s Republic of China (PRC), Taiwan, and Vietnam and also by challenging the PRC’s claim to straight baselines enclosing the Paracel Islands.

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, free trade and unimpeded commerce, and freedom of economic opportunity for South China Sea littoral nations.

The United States challenges excessive maritime claims around the world regardless of the identity of the claimant. Customary international law reflected in the 1982 Law of the Sea Convention protects certain rights, freedoms and lawful uses of the sea enjoyed by 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.

The United States upholds freedom of navigation for all nations as a principle. As long as some countries continue to claim and assert limits on rights that exceed their authority under international law, the United States will continue to defend the rights and freedoms of the sea guaranteed to all. No member of the international community should be intimidated or coerced into giving up their rights and freedoms.

The PRC, Taiwan, and Vietnam each claim sovereignty over the Paracel Islands. In violation of international law, all three claimants require either permission or advance notification before a military vessel or warship engages in “innocent passage” through the territorial sea. Under customary international law as reflected in the Law of the Sea Convention, the ships of all States—including their warships—enjoy the right of innocent pass through the territorial sea. The unilateral imposition of any authorization or advance- notification requirement for innocent passage is unlawful. By engaging in innocent passage without giving prior notification to or asking permission from any of the claimants, the United States challenged these unlawful restrictions imposed by the PRC, Taiwan, and Vietnam. The United States demonstrated that innocent passage is not subject to such restrictions.

The United States also challenged the PRC’s 1996 declaration of straight baselines encompassing the Paracel Islands. Regardless of which claimant has sovereignty over these islands, it is unlawful to draw straight baselines around the Paracel Islands in their entirety. Customary international law as reflected in the Law of the Sea Convention is both clear and comprehensive regarding the circumstances under which States can depart from “normal” baselines. The PRC-claimed straight baselines violate customary international law reflected in Article 7 of the Law of the Sea Convention. Furthermore, international law does not permit [a] continental State, like the PRC, to establish baselines around entire dispersed island groups. With these baselines, the PRC has attempted to claim more internal waters, territorial sea, exclusive economic zone, and continental shelf than it is entitled to under international law.

U.S. forces operate in the South China Sea on a daily basis, as they have for more than a century. They routinely operate in close coordination with like-minded allies and partners that share our commitment to uphold a free and open international order that promotes security and prosperity. All of our operations are conducted safely, professionally, and in accordance with customary international law. The operations demonstrate that the United

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States will fly, sail, and operate wherever international law allows—regardless of the location of excessive maritime claims and regardless of current events.¹⁰⁹

Assessing the Administration’s Strategy

In assessing whether the 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:

• Has the Administration correctly assessed China’s approach to 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 Administration’s 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 maritime disputes in the SCS and ECS, and to strengthening its position over time in the SCS?

Appendix I presents a bibliography of some recent writings by observers regarding U.S. strategy for competing strategically with China in the SCS and ECS.

Risk of Incident, Crisis, or Conflict Involving U.S. Forces

Risk Relating to U.S. and PRC Military Operations In SCS

Some observers—citing both incidents dating back to 2001 between U.S. and PRC ships and aircraft in China’s near-seas areas (see Appendix A), as well as more recent events—have expressed concern that stepped-up U.S. and PRC military ship and aircraft operations in the SCS could increase the risk of a miscalculation or inadvertent action that could cause an accident or lead to an incident that in turn could escalate into a crisis or conflict.¹¹⁰

109 U.S. 7th Fleet Public Affairs, “U.S. Navy Destroyer Conducts Freedom of Navigation Operation in the South China Sea,” Commander, U.S. 7^th Fleet, May 10, 2024.

110 See, for example, James Stavridis, “Near-Collisions at Air and Sea Show China’s New Recklessness, If US Forces Hadn’t Shown Restraint, Scores of Lives Could Have Been Lost. Wars Have Started for Less,” Bloomberg, June 6, 2023; Sarang Shidore, “Could a US-China War Begin over the Philippines?” Responsible Statecraft, May 15, 2023; Justin Katz, “Xi Likely ‘Not Aware’ of All Chinese Gray Zone Operations, US Intel Officer Says,” Breaking Defense, April 5, 2023. See also “America and China Try to Prevent Military Mishaps and Miscalculations,” Economist, June 16, 2022; Risky Competition: Strengthening U.S.-China Crisis Management, International Crisis Group, Asia Report Number 324, May 20, 2022, 34 pp.

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Risk Relating to Maritime Territorial Disputes Involving Allies

Some observers are 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.¹¹¹ 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?

• 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? As noted earlier, in May 2023, the United States and the Philippines released updated bilateral defense guidelines that, among other things, clarified the circumstances under which U.S. forces would come to the aid of the Philippines under the 1951 U.S.-Philippines mutual defense treaty.¹¹²

• 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 PRC 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?

111 See, for example, Jennifer Jett, “Why the U.S. Could Get Drawn into a Conflict in the South China Sea,” NBC News, August 18, 2024; Mike Ives, “Why Are There Fears of War in the South China Sea?” New York Times, August 12, 2024; Craig Singleton, “China and the U.S. Are Careening Toward a South China Sea Crisis,” Foreign Policy, July 23 2024; Dylan Butts, “China Is Testing the Limits of a Critical U.S.-Philippines Defense Pact—Will Washington Respond?” CNBC, June 27 (updated June 30), 2024; Sarang Shidore, “The South China Sea Risks a Military Crisis,” Foreign Policy, May 31, 2024; Rebecca Tan, Regine Cabato, and Laris Karklis, “Asia’s Next War Could Be Triggered by a Rusting Warship on a Disputed Reef,” Washington Post, April 26, 2024; Mallory Shelbourne and Sam LaGrone, “China’s Attacks on Philippine Resupply Missions Test 70-Year-Old Defense Pact,” USNI News, March 29, 2024; Dean Cheng, Carla Freeman, Brian Harding, and Andrew Scobell, “Are China and the Philippines on a Collision Course? China’s Gray Zone Operations Risk a War that Could Draw in the United States,” U.S. Institute of Peace, March 14, 2024; Bill Gertz, “Water Cannon Attack on Philippines Navy Boat Raises Odds of U.S.-China Clash,” Washington Times, March 27, 2024; Seong Hyeon Choi, “Taiwan or South China Sea: Which Is the Riskier Flashpoint for US-China Ties?” South China Morning Post, January 16, 2024; Brad Lendon, “China-Philippines Maritime Standoff Escalating on Path That Could Drag US into Conflict, Analysts Warn,” CNN, December 13, 2023.

112 See, for example, Felix K. Chang, “America and the Philippines Update Defense Guidelines,” Foreign Policy Research Institute (FPRI), May 24, 2023.

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To what extent do they deter or limit PRC 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).¹¹³ 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, 1994.¹¹⁴ 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 112^th 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.¹¹⁵

• 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.¹¹⁶

Opponents of the United States becoming a party to UNCLOS argue or might argue one or more of the following:

113 For additional background information on UNCLOS, see Appendix C. For a press report regarding the debate about whether the United States should become a party to the treaty, see Robert Delaney, “Why won’t the US, wary of China’s ambitions in the South China Sea, join a UN agreement on ocean rights?” South China Morning Post, January 4, 2024.

114 Treaty Document 103-39.

115 See, for example, Andrew Browne, “A Hole in the U.S. Approach to Beijing,” Wall Street Journal, May 20, 2014.

116 See, for example, Troy Bouffard, “Strategic Competition and the Case for UNCLOS,” Wilson Center, Polar Points No. 30, June 4, 2024; Alex Willemyns, “White House Official Urges Senate to Ratify Law of the Sea,” Radio Free Asia (RFA), December 7, 2023; Patricia Kine, “Signing Treaty Would Bolster US Against China, Russia Seapower: Lawmaker,” Military.com, January 16, 2019.

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• 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 EEZs¹¹⁷ 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.¹¹⁸

Legislative Activity in the 118^th Congress

Legislative Activity for FY2025

FY2025 National Defense Authorization Act (NDAA) (H.R. 8070/S. 4638)

House

In H.R. 8070 as reported by the House Armed Services Committee (H.Rept. 118-529 of May 31, 2024) and passed by the House on June 14, 2024, Section 1757 states that “it is the policy of the United States to reject as a violation of international law and United States sovereignty any attempt by China’s Maritime Safety Administration to compel United States vessels to adhere to any reporting requirements listed within China’s Maritime Traffic Safety Law,” with the policy to be applied to “all maritime claims made by the People’s Republic of China that the United States has rejected, to include virtually all of China’s claims within the Nine-Dash Line.”

117 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 (AMTI) (Center for Strategic and International Studies [CSIS]), September 11, 2015.

118 For articles providing general arguments against the United States becoming a party to UNCLOS, see Steven Groves, “This Senate May Smile on Faulty Law of the Sea Treaty,” Heritage Foundation, March 19, 2021; 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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Other Legislative Activity

Other legislation in the 118^th Congress relating to the SCS and/or the ECS includes but is not necessarily limited to

• H.R. 7757, a bill to amend the Securities Exchange Act of 1934 to require disclosures with respect to certain financial risks relating to China, and for other purposes;

• H.R. 6597, the Indo-Pacific Treaty Organization Act;

• H.R. 4659, a bill to promote free and fair elections, democracy, political freedoms, and human rights in Cambodia, and for other purposes;

• H.Res. 1412, a resolution condemning the China Coast Guard’s repeated violations of international maritime law and aggression toward the Philippines, Taiwan, Japan, and Malaysia;

• H.Res. 1118, a resolution recognizing the importance of the U.S.-Japan alliance and welcoming the visit of Prime Minister Kishida Fumio to the United States;

• H.Res. 843, a resolution reaffirming the U.S.-Philippines alliance and condemning China’s gray zone campaign in the SCS against the Philippines;

• H.Res. 837, a resolution reaffirming the ties between the United States and the Philippines;

• S. 4586, a bill to prevent the funding of malign activities of the Chinese Communist Party though the sale of “A-Shares” on certain securities exchanges controlled by the Chinese Communist Party by prohibiting the purchase, sale, and ownership of such securities by United States investors, and for other purposes;

• S. 2331, a bill to promote free and fair elections, democracy, political freedoms, and human rights in Cambodia, and for other purposes;

• S. 591, the South China Sea and East China Sea Sanctions Act of 2023;

• S. 151, a bill to amend the Securities Exchange Act of 1934 to address corrupt practices of the Government of the People’s Republic of China, and for other purposes;

• S.Res. 626, a resolution recognizing the importance of the U.S.-Japan alliance and welcoming the visit of Prime Minister Kishida Fumio to the United States; and

• S.Res. 466, a resolution calling upon the United States Senate to give its advice and consent to the ratification of UNCLOS.

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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.¹¹⁹

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 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 Paracel Islands in the SCS, which are claimed by China and Vietnam, and occupied by China;

• 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.¹²⁰

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.¹²¹ There are additional maritime territorial disputes in the Western Pacific that do not involve China.¹²² Maritime territorial disputes in the SCS and ECS date back many years, and have periodically led to diplomatic tensions as well as

119 See CRS In Focus IF10607, China Primer: South China Sea Disputes, 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. See also Benjamin J. Sacks, The Political Geography of the South China Sea Disputes, A RAND Research Primer, Report PE-A2021-1, RAND, October 2022, 31 pp.

120 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.

121 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.

122 North Korea and South Korea, for example, have not reached final agreement on their exact maritime border; South Korea and Japan are involved in a dispute over the Liancourt Rocks—a group of islets in the Sea of Japan that Japan refers to as the Takeshima islands and South Korea as the Dokdo islands; and Japan and Russia are involved in a dispute over islands dividing the Sea of Okhotsk from the Pacific Ocean that Japan refers to as the Northern Territories and Russia refers to as the South Kuril Islands.

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confrontations and incidents at sea involving fishing vessels, oil exploration vessels and oil rigs, coast guard ships, naval ships, and military aircraft.¹²³

Figure A-1. Maritime T erritorial Disputes Involving China

Island groups involved in principal disputes

Source: Map prepared by CRS using U.S. Department of State boundaries.

EEZ Dispute and U.S.-PRC Incidents at Sea

123 One observer states that “notable incidents over sovereignty include the Chinese attack on the forces of the Republic of Vietnam [South Vietnam] in the Paracel Islands in 1974, China’s attack on Vietnamese forces near Fiery Cross Reef [in the Spratly Islands] in 1988, and China’s military ouster of Philippines forces from Mischief Reef [also in the Spratly Islands] in 1995.” Peter Dutton, “Three Dispute and Three Objectives,” Naval War College Review, Autumn 2011: 43. A similar recounting can be found in Department of Defense, Annual Report to Congress, Military and Security Developments Involving the People’s Republic of China, 2011, p. 15.

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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.¹²⁴

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 stated in 2012 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.¹²⁵

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 these countries—China, North Korea, and Peru—have directly interfered with foreign military activities in their EEZs.¹²⁶

124 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.

125 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.)

126 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.

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• incidents in March 2001, September 2002, March 2009, and May 2009, in which PRC 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 PRC 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;¹²⁷

• an incident on December 5, 2013, in which a PRC 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 PRC 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 Island¹²⁸—DOD characterized the intercept as “very, very close, very dangerous”;¹²⁹ and

• an incident on May 17, 2016, in which PRC 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.”¹³⁰

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.¹³¹

127 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 May 31, 2023, 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.

128 Source for location: Transcript of remarks by DOD Press Secretary Rear Admiral John Kirby at August 22, 2014, press briefing, accessed May 31, 2023, 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.

129 Source: Transcript of remarks by DOD Press Secretary Rear Admiral John Kirby at August 22, 2014, press briefing, accessed May 31, 2023, at http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5493.

130 See, for example, Michael S. Schmidt, “Chinese Aircraft Fly Within 50 Feet of U.S. Plane Over South China Sea, Pentagon Says,” New York Times, May 18, 2016; Thomas Gibbons-Neff, “Chinese Jets Intercept U.S. Recon Plane, Almost Colliding Over South China Sea,” Washington Post, May 18, 2016; Idrees Ali and Megha Rajagopalan, “Chinese Jets Intercept U.S. Military Plan over South China Sea: Pentagon,” Reuters, May 19, 2016; Jamie Crawford, “Pentagon: ‘Unsafe’ Intercept over South China Sea,” CNN, May 19, 2016.

131 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 (continued...)

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Figure A-2. Locations of 2001, 2002, and 2009 U.S.-PRC Incidents at Sea and In Air

Source: Map prepared by CRS based on map shown on page 6 of 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.

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.

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 May 31, 2023, at https://web.archive.org/web/20130712184831/http://www.defense.gov/transcripts/transcript.aspx? transcriptid=5270.

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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),¹³² which was signed in April 2014.¹³³

On September 30, 2018, an incident occurred in the SCS between the U.S. Navy destroyer Decatur (DDG-73) and a PRC destroyer, as the Decatur was conducting a FON operation near Gaven Reef in the Spratly Islands. In the incident, the PRC 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 PRC ship. U.S. officials stated that at the point of closest approach between the two ships, the stern (i.e., back end) of the PRC ship came within 45 yards (135 feet) of the bow (i.e., front end) of the Decatur. As the encounter was in progress, the PRC 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 PRC ship in the incident as “unsafe and unprofessional.”¹³⁴

A November 3, 2018, press report states the following:

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.

132 For more on the CUES agreement, see “2014 Code for Unplanned Encounters at Sea (CUES)” below.

133 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, pp. 14-15.

134 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 Administration,” 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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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.¹³⁵

DOD states that

The PRC has long challenged foreign military activities in its claimed exclusive economic zone (EEZ) in a manner that is inconsistent with the rules of customary international law as reflected in the United Nations Convention on the Law of the Sea. However, in recent years, the PLA has begun conducting the same types of military activities inside and outside the First Island Chain in the EEZs of other countries, including the United States. This activity highlights China’s double standard in the application of its interpretation of international law. Examples include sending intelligence collecting ships to collect [information] on military exercises such as the Rim of the Pacific (RIMPAC) exercise off Hawaii in 2014 and 2018, [the] TALISMAN SABER [exercise] off Australia in 2017, 2019, and 2021, and operating near Alaska in 2017 and 2021. PRC survey ships are also extremely active in the South China Sea and they frequently operate in the claimed EEZs of other nations in the region such as the Philippines, Vietnam, and Malaysia.¹³⁶

Relationship of Maritime Territorial Disputes to EEZ Dispute

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

135 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.

136 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s Republic of China 2022, p. 18 (emphasis as in original). 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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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.-PRC 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 security¹³⁷ 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.”¹³⁸ (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.¹³⁹

137 Treaty of mutual cooperation and security, signed January 19, 1960, entered into force June 23, 1960, 11 UST 1632; TIAS 4509; 373 UNTS.

138 The quoted words are from Secretary of Defense Chuck Hagel, in “Media Availability with Secretary Hagel En Route to Japan,” April 5, 2014, accessed May 31, 2023, at https://web.archive.org/web/20150905125246/http:// archive.defense.gov/transcripts/transcript.aspx?transcriptid=5405.See also, for example, Kyodo News, “U.S. Will Defend Senkakus Under Security Treaty, Biden Tells Suga,” Kyodo News, November 12, 2020; Seth Robson and Hana Kusumoto, “Biden Doubles Down on Pledge to Defend Senkakus in Call with Japan’s New Leader,” Stars and Stripes, October 5, 2021.

139 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.

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U.S.-Philippines Mutual Defense Treaty¹⁴⁰

The 1951 U.S.-Philippines mutual defense treaty¹⁴¹ states in Article IV that

Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

Article V states that

For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.

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.¹⁴²

U.S. officials have made their own statements regarding the treaty’s application to territorial disputes in the SCS. For example, an August 19, 2024, State Department press statement stated: “The United States reaffirms that Article IV of the 1951 U.S.-Philippines Mutual Defense Treaty extends to armed attacks on Philippine armed forces, public vessels, or aircraft – including those of its Coast Guard—anywhere in the South China Sea.”¹⁴³

140 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.

141 Mutual defense treaty, signed August 30, 1951, entered into force August 27, 1952, 3 UST 3947, TIAS 2529, 177 UNTS 133.

142 Statement of Secretary del Rosario regarding the Philippines-U.S. Mutual Defense Treaty, May 9, 2012, accessed May 31, 2023, at https://www.officialgazette.gov.ph/2012/05/09/statement-of-secretary-del-rosario-regarding-the- philippines-u-s-mutual-defense-treaty-may-9-2012/.

143 U.S. Department of State, “U.S. Support for the Philippines in the South China Sea,” press statement dated August 19, 2024.

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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.”¹⁴⁴ 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 1966.¹⁴⁵ All four treaties remain in force for the United States.¹⁴⁶

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.”¹⁴⁷ 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 July 23, 2024, 169 nations plus the European Union were party to the treaty.¹⁴⁸ As discussed further in the next section, the United States is not a party to the treaty.

144 United Nations, “United Nations Convention on the Law of the Sea of 10 December 1982, Overview and full text,” updated June 28, 2019, accessed May 31, 2023, at https://www.un.org/depts/los/convention_agreements/ convention_overview_convention.htm.

145 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 May 31, 2023, at http://legal.un.org/ diplomaticconferences/1958_los/, and United Nations, “1958 Geneva Conventions on the Law of the Sea,” undated, accessed May 31, 2023, at http://legal.un.org/avl/ha/gclos/gclos.html.)

146 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.

147 United Nations, “United Nations Convention on the Law of the Sea of 10 December 1982, Overview and full text,” updated June 28, 2019, accessed May 31, 2023, 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 May 31, 2023, at http://legal.un.org/diplomaticconferences/1973_los/.

148 Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as of July 23, 2024, accessed August 20, 2024, 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.¹⁴⁹ 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.¹⁵⁰ 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.”¹⁵¹

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.¹⁵²

The 1982 treaty and the 1994 agreement were transmitted to the Senate on October 6, 1994, during the 103^rd Congress, becoming Treaty Document 103-39. Subsequent Senate action on Treaty Document 103-39, as presented at Congress.gov,¹⁵³ can be summarized as follows:

• In 2004, during the 108^th 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 108^th Congress, and the matter was re- referred to the committee at the sine die adjournment of the 108^th Congress.

• In 2007, during the 110^th 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

149 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.

150 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 May 31, 2023, at https://www.reaganlibrary.gov/research/speeches/31083c.)

151 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 May 31, 2023, at https://www.un.org/depts/ los/convention_agreements/convention_overview_part_xi.htm.

152 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 February 7, 2023, accessed May 31, 2023, at https://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-6-a&chapter=21&clang=_en.

153 United Nations Convention on the Law of the Sea, Senate Consideration of Treaty Document 103-39, accessed May 31, 2023, 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,” accessed May 31, 2023, at https://www.state.gov/law-of-the-sea-convention/.

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further action was taken during the 110^th Congress, and the matter was re-referred to the committee at the sine die adjournment of the 110^th Congress.

• In 2012, during the 112^th Congress, the committee held hearings on Treaty Document 103-39. No further action was taken during the 112^th 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. Oceans Policy

A March 10, 1983, statement on U.S. oceans 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.¹⁵⁴

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),¹⁵⁵ 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.”¹⁵⁶ Although

154 Statement on United States Oceans Policy, March 10, 1983, accessed May 31, 2023, at https://www.reaganlibrary.gov/archives/speech/statement-united-states-oceans-policy, and https://2009-2017.state.gov/ documents/organization/143224.pdf.

155 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.

156 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 (continued...)

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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.”¹⁵⁷ 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 ASEAN¹⁵⁸ 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.¹⁵⁹

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.¹⁶⁰

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.

157 Rule 1(a) of the convention.

158 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.

159 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 May 31, 2023, at http://www.rubio.senate.gov/public/index.cfm/2014/1/rubio-calls-on-administration-to-address-provocative-chinese- behavior.

160 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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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.¹⁶¹

Esper, speaking at an online event hosted by the International Institute for Strategic Studies, said the U.S. policy has always been backed up by its actions like FONOps and other presence operations. Last year marked “the greatest number of freedom of navigations operations in the South China Sea in the 40-year history of the FONOps program, and we will keep up the pace this year.”

The Navy conducted nine FONOps operations in the South China Sea in 2019. Six FONOps have been conducted in the South China Sea this year, starting with the Littoral Combat Ship USS Montgomery (LCS-8) in January, destroyer USS McCampbell (DDG- 85) in March, cruiser USS Bunker Hill (CG-52) and destroyer USS Barry (DDG-52) in separate operations in April, destroyer USS Mustin (DDG-89) in May and destroyer USS Ralph Johnson (DDG-114) in the latest operation on July 14.¹⁶²

In April 5, 2023, remarks at a conference, Rear Admiral Mike Studeman, Commander, Office of Naval Intelligence (ONI) stated:

When it chooses, China also intentionally violates COLREGs and CUES, two agreements designed for safety at sea.... China has signed both, but ignores them at unpredictable times. One example is a PLA LUYANG destroyer dangerously cutting across the bow of a US destroyer in 2018. Another Chinese tactic we’ve seen recently involves a PLA auxiliary putting themselves on a collision course with a foreign vessel, falsely signaling that they’ve lost control of steerage, and claiming “stand-on” rights to force the other ship to give way

161 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.

162 Dzirhan Mahadzir, “SECDEF Esper: U.S. Will ‘Keep Up the Pace’ of South China Sea Freedom of Navigation Operations,” USNI News, July 21, 2020.

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and change course. These behaviors reflect a brazen disregard for basic safety guidelines and show how flagrantly China flouts international strictures they promised to abide.¹⁶³

The CUES agreement cited above is discussed in the next section.

On June 5, 2023, following an incident during a transit of the Taiwan Strait by a U.S. Navy destroyer and a Canadian navy frigate, in which a PRC navy destroyer crossed in front of the U.S. Navy destroyer in an unsafe manner, a statement issued by the U.S. Indo-Pacific Command (USINDOPACOM) stated:

In accordance with international law, [the U.S. Navy destroyer] USS Chung-Hoon (DDG 93) and [the Canadian navy frigate] HMCS Montreal (FFH 336) conducted a routine south to north Taiwan Strait transit June 3 through waters where high seas freedoms of navigation and overflight apply. During the transit, [the] PLA(N) [i.e., Chinese navy] LUYANG III [class destroyer] DDG 132 (PRC LY 132) executed maneuvers in an unsafe manner in the vicinity of Chung-Hoon. The PRC LY 132 overtook Chung-Hoon on their [i.e., Chung- Hoon’s] port side and crossed their [i.e., Chung-Hoon’s] bow at 150 yards. Chung-Hoon maintained course and slowed to 10 kts to avoid a collision. The PRC LY 132 crossed Chung-Hoon’s bow a second time starboard to port at 2,000 yards and remained off Chung- Hoon’s port bow. The LY 132’s closest point of approach was 150 yards and its actions violated the maritime ‘Rules of the Road’ of safe passage in international waters.¹⁶⁴

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 14^th Western Pacific Naval Symposium (WPNS),¹⁶⁵ 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.¹⁶⁶ 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

163 Rear Admiral Mike Studeman, Commander, Office of Naval Intelligence, “Dangers Posed by China’s Frontline Forces,” remarks as prepared for the Sea Air and Space Conference, Washington, DC, April 5, 2023.

164 U.S. Indo-Pacific Command Public Affairs, “USINDOPACOM Statement on Unsafe Maritime Interaction,” June 5, 2023.

165 For more on the WPNS, see Singapore Ministry of Defense, “Fact Sheet: Background of the Western Pacific Naval Symposium, MCMEX, DIVEX and NMS,” March 25, 2011, accessed May 31, 2023, at https://www.nas.gov.sg/ archivesonline/data/pdfdoc/MINDEF_20110325001/MINDEF_20110325003.pdf.

166 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 May 31, 2023, at https://web.archive.org/ web/20130320014047/http://navy.mil.my/wpns2012/images/stories/dokumen/ WPNS%202012%20PRESENTATION%20FOLDER/ACTION%20ITEMS%20WPNS%20WORKSHOP%202012/ CUES.PDF.

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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.”¹⁶⁷

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.¹⁶⁸

U.S. Navy officials have stated that that the United States (as noted in the passage above) is interested in expanding the agreement to cover coast guard ships.¹⁶⁹ Officials from Singapore and Malaysia reportedly have expressed support for the idea.¹⁷⁰ An Obama Administration fact sheet about PRC 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.¹⁷¹

A November 3, 2018, press report published following an incident in the SCS between a U.S. Navy destroyer and a PRC 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.”

167 Jeff M. Smith and Joshua Eisenman, “China and America Clash on the High Seas: The EEZ Challenge,” The National Interest, May 22, 2014.

168 Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 31.

169 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.

170 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 3^rd 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.

171 “FACT SHEET: President Xi Jinping’s State Visit to the United States,” September 25, 2015, accessed May 31, 2023, at https://www.whitehouse.gov/the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-united- states.

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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.¹⁷²

See also the April 5, 2023, remarks from the Commander, Office of Naval Intelligence, regarding the compliance of China’s military forces with the COLREGs treaty and the CUES agreement that are quoted in the previous section on the COLREGS treaty.

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.¹⁷³ 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.¹⁷⁴ The MOU as signed in November 2014 included an annex on rules of 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, 2015.¹⁷⁵

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

172 Mike Yeo, “Top US Navy Officer Tells China to Behave at Sea,” Defense News, November 3, 2018.

173 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.

174 DOD stated in 2015 that

In 2014, then-Secretary Hagel and his Chinese counterpart signed a historic Memorandum of Understanding (MOU) on Rules of Behavior for Safety of Air and Maritime Encounters. The MOU established a common understanding of operational procedures for when air and maritime vessels meet at sea, drawing from and reinforcing existing international law and standards and managing risk by reducing the possibility of misunderstanding and misperception between the militaries of the United States and China. To date, this MOU includes an annex for ship-to-ship encounters. To augment this MOU, the Department of Defense has prioritized developing an annex on air-to-air encounters by the end of 2015. Upon the conclusion of this final annex, bilateral consultations under the Rules of Behavior MOU will be facilitated under the existing MMCA forum. (Department of Defense, Asia-Pacific Maritime Security Strategy, undated but released August 2015, p. 30.)

For additional discussion of the MOU, see Peter A. Dutton, “MOUs: The Secret Sauce to Avoiding a U.S.-China Disaster?” 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 (AMTI) (Center for Strategic and International Studies [CSIS]), 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.

175 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.

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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.¹⁷⁶

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....¹⁷⁷

176 Jake Maxwell Watts, “Defense Chiefs Seek Friendlier Skies Over Asia’s Military Flashpoints,” Wall Street Journal, October 20, 2018.

177 Text as taken from https://asean.org/?static_post=declaration-on-the-conduct-of-parties-in-the-south-china-sea-2.

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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. 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.¹⁷⁸

178 Evan A. Laksmana, “The South China Sea Talks Between ASEAN and China,” International Institute for Strategic Studies (IISS), August 21, 2023.

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Appendix D. July 2016 Tribunal Award in Philippines-China SCS Arbitration Case

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.¹⁷⁹ 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

179 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.¹⁸⁰

180 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 (continued...)

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Reported PRC 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.”¹⁸¹ A July 20, 2017, article 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.’”¹⁸² 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.¹⁸³

A July 12, 2021, press report from a PRC media outlet stated (emphasis as in original)

On July 12, 2016, the so-called arbitral tribunal of the South China Sea issue, under America’s manipulation and at the request of the Aquino III administration of the Philippines, staged a farce of completely negating China’s sovereign rights over the South China Sea by releasing its “arbitration award”. Five years have passed, and the international community has gradually seen through the nature of this event.

Thanks to the united efforts of China and other regional countries over the past five years, the South China Sea situation has made a fundamental turnaround, and the Chinese government’s stance of “no acceptance, no participation, no recognition” is also widely confirmed and accepted by the international community….

Throwing the “award” into the garbage heap of history is an imperative step to establish the authority of international law and maintain the international order based on it….

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.

181 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.

182 Bill Hayton, “Bill Hayton: Beijing Takes South China Sea Ruling Seriously,” Nikkei Asia, July 20, 2017.

183 Kirsty Needham, “‘Xi and his Era’: China Adopts a Triumphant Tone as US World Leadership Falters,” Sydney Morning Herald,” November 22, 2017. See also Willard Cheng, “China Rejects Hague Ruling Anew, Cites ‘Agreement’ with Duterte to ‘Close the Old Chapter,’” ABS-CBN News, September 25, 2020; Wu Shicun, “Give Burial at Sea to South China Sea Arbitration Ruling,” Global Times, December 10, 2020 (similar version published as Global Times, “Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration,” People’s Online Daily, December 11, 2020); National Institute for South China Sea Studies (research team formed under direction of Shicun Wu), “A Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration,” Asian Yearbook of International Law, vol. 24 (2018): 151-293 (print publication date October 22, 2020), accessed May 31, 2023, at https://brill.com/display/book/edcoll/9789004437784/BP000019.xml. See also Tristan Nodalo, “China Claims US ‘Mastermind’ Behind South China Sea Arbitration Case; US Says It’s ‘An insult to PH,’” CNN Philippines, July 18, 2023; Beijing Newsroom, Karen Lema, and Bernard Orr, “China blasts US for forcing it to accept South China Sea ruling,” Reuters, July 12, 2023.

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It’s clear that the “South China Sea arbitration” directed by the US, a country known for its violation of international law, is just another case in point of its unscrupulous, disguised distortion of the law and disruption of international relations.

Throwing the “award” into the garbage heap of history is the only choice to maintain lasting peace and stability in the South China Sea and cement the China-ASEAN community of shared future.¹⁸⁴

A March 5, 2024, press report from a PRC media outlet stated

China firmly opposes attempts by the Philippines to solidify the illegal ruling of the South China Sea arbitration through domestic legislation, which unlawfully includes China's Huangyan Island and most of the islands and reefs in the Nansha Islands in its maritime jurisdiction, the Chinese Foreign Ministry spokesperson said on Tuesday [March 5] in response to the passage of the Philippine Maritime Zones Bill….

The arbitral tribunal in the South China Sea arbitration handled the case ultra vires [i.e., beyond one's legal power or authority] and made an illegitimate ruling. The rendered award is illegal, null and void. China neither accepts nor participates in that arbitration, neither accepts nor recognizes the award, and will never accept any claim or action arising from the award, Mao said.

China's territorial sovereignty and maritime rights and interests in the South China Sea will not be affected by the award in any way, she added.¹⁸⁵

Assessments of the Impact of Arbitral Award

In the years since the arbitral panel’s award was announced, observers have expressed various views regarding the impact of the award.¹⁸⁶

184 Wu Shicun, “How Did South China Sea Arbitration Award End Up in Farce?” People’s Online Daily, July 12, 2021.

185 Global Times, “China Firmly Opposes Passage of Philippine Maritime Bill that Solidifies Illegal S.China Sea Arbitral Ruling,” Global Times, March 5, 2024.

186 See, for example, Bill Hayton, “Beijing Shifts Strategy in South China Sea,” Nikkei Asian Review, July 12, 2017; 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; Richard Javad Heydarian, “United Front Mounts Against Duterte’s China Policy,” Asia Times, July 12, 2018; Lynn Kuok, “China Is Winning in the South China Sea,” Wall Street Journal, July 17, 2018; Banners Welcome Visitors to ‘Philippines, Province of China,’” Philippine Star, July 12, 2018; Jun Nucum, “‘China Out of West PH Sea’ Protests Mark 2nd Year of Int’l Court Ruling,” Philippine Daily Inquirer, July 17, 2018; Hoang Thi Ha and Ian Storey, “A Missed Chance in the South China Sea Has Come Back to Haunt Asean,” South China Morning Post, July 15, 2020; Raissa Robles, “South China Sea: Duterte’s UN Speech Defending Award Wins Praise—Even from Critics,” South China Morning Post, September 23, 2020; ABS-CBN News, “Why Did Duterte Raise Arbitral Win vs China Before UN after 4 years?” ABS-CBN News, September 24, 2020; Karen Lema, “Five Years After South China Sea Ruling, China's Presence Around Philippines Only Growing,” Reuters, July 9, 2021; State Department, “Fifth Anniversary of the Arbitral Tribunal Ruling on the South China Sea,” press statement, Antony J. Blinken, Secretary of State, July 11, 2021; Cliff Venzon, “Manila Confronts Beijing 5 Years After South China Sea Ruling,” Nikkei Asia, July 12, 2021; Jill Goldenziel, “Here’s Why China Is Afraid Of An Obscure International Court,” Forbes, July 19, 2021; Austin Bay, “Law of the Sea Court Ruling Continues to Challenge Chinese Aggression,” Creators Syndicate, July 21, 2021; Sourabh Gupta, “The South China Sea Arbitration Award Five Years Later,” Lawfare, August 3, 2021; Clive Schofield, “Law of the sea: A Contested Watershed Ruling,” Interpreter, April 13, 2022; Shi Jiangtao,” South China Sea: Hague Ruling Rejected by Beijing Still Casts Long Shadow over Dispute,” South China Morning Post, June 24, 2024.

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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 maritime disputes in the SCS and ECS, and to strengthening its position over time in the SCS.¹⁸⁷

Island Building and Base Construction

DOD stated in 2023 that

Since at least 2014, CMM [China’s Maritime Militia] vessels have engaged in covert small scale reclamation activity and likely caused physical changes observed at multiple unoccupied features in the Spratly Islands, including Lankiam Cay, Eldad Reef, Sandy Cay, and Whitsun Reef. Beijing likely is attempting to covertly alter these features so that it can portray them as naturally formed high tide elevations capable of supporting PRC maritime claims out to the farthest extent of the nine-nash line. In contrast to the PRC large- scale reclamation program, which was overt and where the original status of occupied features is well documented, the less well-known historical record about many of the unoccupied features makes them more susceptible to PRC efforts to shape international opinion regarding the status of the features….

The PRC’s outposts on the Spratly Islands are capable of supporting military operations, including advanced weapon systems, and have supported non-combat aircraft. However, no large-scale presence of combat aircraft has been yet observed at airfields on the outposts….

Since early 2018, the PRC-occupied Spratly Islands outposts have been equipped with advanced anti-ship and anti-aircraft missile systems and military jamming equipment, representing the most capable land-based weapons systems deployed by any claimant in the disputed SCS areas to date. In mid-2021, the PLA deployed an intelligence-gathering ship and a surveillance aircraft to the Spratly Islands during U.S.-Australia bilateral operations in the region. From early 2018 through 2022, the PRC regularly used its Spratly Islands outposts to support naval and coast guard operations in the SCS. The PRC has added more than 3,200 acres of land to the seven features it occupies in the Spratlys. China has also added military infrastructure, including 72 aircraft hangars, docks, satellite communication equipment, antenna array, radars, and hardened shelters for missile platforms.

The PRC has stated these projects are mainly to improve marine research, safety of navigation, and the living and working conditions of personnel stationed on the outposts. However, the outposts provide airfields, berthing areas, and resupply facilities that allow the PRC to maintain a more flexible and persistent military and paramilitary presence in the area. This improves the PRC’s ability to detect and challenge activities by rival claimants or third parties and widens the range of response options available to Beijing.¹⁸⁸

A January 25, 2023, press report stated

187 For additional discussion, see Andrew Chubb, Dynamics of Assertiveness in the South China Sea: China, the Philippines, and Vietnam, 1970–2015, National Bureau of Asian Research, May 2022, 45 pp.; or Andrew Chubb, “PRC Assertiveness in the South China Sea, Measuring Continuity and Change, 1970–2015, International Security, Winter 2020-2021: 79-121.)

188 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s Republic of China 2023, released October 19, 2023, pp. 81, 124, 126-127.

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A newly emerged satellite image shows a Chinese air defense facility on the Paracel Islands, which analysts say indicates the People’s Liberation Army now has surface-to-air missiles at the ready permanently in both the contested archipelagos in the South China Sea....

A satellite image of what appears to be a newly-built but completed missile battalion on Woody Island within the Paracel group has surfaced this week on Twitter.

The image—credited to Maxar Technologies, a space technology firm, and allegedly taken last April—shows four buildings with retractable roofs at a site on Woody (Yongxing in Chinese), the largest of the Paracel Islands in the South China Sea.

One of the buildings has its roof partially open, showing what appears to be surface-to-air missiles (SAM) launchers inside.

ImageSat International, a space intelligence company, first detected the appearance, removal and reappearance of HQ-9 SAM launchers on Woody Island in 2016.

But the new satellite image, which RFA could not verify independently, shows that the PLA has completed building an air defense base resembling those on the three artificial islands that it has fully militarized.

Similar structures with retractable roofs were detected on Subi, Mischief and Fiery Cross reefs, part of the Spratly Islands in the South China Sea, Tom Shugart, adjunct Senior Fellow at the Center for a New American Security, wrote on Twitter.

They are permanent facilities that can house long-range missile batteries that would expand China’s reach in disputed areas.¹⁸⁹

A December 20, 2022, press report stated

China is building up several unoccupied land features in the South China Sea, according to Western officials, an unprecedented move they said was part of Beijing’s long-running effort to strengthen claims to disputed territory in a region critical to global trade.

While China has previously built out disputed reefs, islands and land formations in the area that it had long controlled—and militarized them with ports, runways and other infrastructure—the officials presented images of what they called the first known instances of a nation doing so on territory it doesn’t already occupy. They warned that Beijing’s latest construction activity indicates an attempt to advance a new status quo, even though it’s too early to know whether China would seek to militarize them....

The officials said new land formations have appeared above water over the past year at Eldad Reef in the northern Spratlys, with images showing large holes, debris piles and excavator tracks at a site that used to be only partially exposed at high tide. A 2014 photo of the reef, previously reported to have been taken by the Philippine military, had depicted what the officials said was a Chinese maritime vessel offloading an amphibious hydraulic excavator used in land reclamation projects.

They said similar activities have also taken place at Lankiam Cay, known as Panata Island in the Philippines, where a feature had been reinforced with a new perimeter wall over the course of just a couple of months last year. Other images they presented showed physical changes at both Whitsun Reef and Sandy Cay, where previously submerged features now sit permanently above the high-tide line.¹⁹⁰

189 RFA [Radio Free Asia] Staff, “China Puts Missile Bases on Disputed South China Sea Islands, Analysts Say,” Radio Free Asia, January 25, 2023.

190 Philip Heijmans, “China Accused of Fresh Territorial Grab in South China Sea,” Bloomberg, December 20, 2022. See also Dan Parsons and Tyler Rogoway, “China’s Man-Made South China Sea Islands Like You’ve Never Seen Them Before,” The Drive, October 27, 2022.

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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.

Use of Coast Guard Ships and Maritime Militia

Coast Guard Ships

Overview

The China Coast Guard (CCG) is much larger than the coast guard of any other country in the region,¹⁹¹ and it has increased substantially in size 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 PRC navy ships sometimes available over the horizon as backup forces. DOD states that

The CCG is subordinate to the PAP and is responsible for a wide range of maritime security missions, including defending the PRC’s sovereignty claims; combating smuggling, terrorism, and environmental crimes; as well as supporting international cooperation. In 2021, the Standing Committee of China’s National People’s Congress passed the Coast Guard Law which took effect on 1 February 2021. The legislation regulates the duties of the CCG, to include the use of force, and applies those duties to seas under the jurisdiction of the PRC. The law was met with concern by other regional countries that may perceive the law as an implicit threat to use force, especially as territorial disputes in the region continue.

Since the law, CCG activity has continued to prompt regional concern. In March 2022, the Philippines lodged a diplomatic protest against the PRC after a CCG vessel reportedly engaged in “close distance maneuvering” near a Filipino vessel in the disputed Scarborough Shoal. In December 2022, Japan reported that CCG vessels stayed in its territorial waters for over 72 hours, the longest continuous intrusion since 2012.

The CCG’s continued expansion and modernization makes it the largest maritime law enforcement fleet in the world. Newer CCG vessels are larger and more capable than older vessels, allowing them to operate further offshore and remain on station longer. While exact numbers are unavailable, open-source reporting and commercial imagery counts indicate the CCG has over 150 regional and oceangoing patrol vessels (more than 1,000 tons). These larger vessels include over 20 corvettes transferred from the PLAN, which were modified for CCG operations. The newer, larger CCG vessels are equipped with helicopter facilities, high-capacity water cannons, multiple interceptor boats and guns ranging from 20 to 76 millimeters. Revised estimates indicate the CCG operates more than 50 regional patrol combatants (more than 500 tons), which can be used for limited offshore operations, and an additional 300 coastal patrol craft (100 to 499 tons).¹⁹²

191 See, for example, Damien Cave, “China Creates a Coast Guard Like No Other, Seeking Supremacy in Asian Seas,” New York Times, June 12 (updated September 24), 2023.

192 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s Republic of China 2023, released October 19, 2023, pp. 79-80. See also Alyssa Chen, “China Coast Guard: What Does It Do and How Did It Become So Powerful?” South China Morning Post, July 1, 2024; Karishma Vaswani, “China’s Coast Guard Is Its Secret Weapon Against Taiwan,” Bloomberg, June 11, 2024; “Control by Patrol: The China Coast Guard in 2023,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), March 29, 2024; Yukio Tajima, “China Flexes Maritime Muscle with Bigger, Tougher Coast Guard Ships,” Nikkei Asia, February 28, 2024.

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Maritime Militia

China also uses its maritime militia—also referred to as China’s Maritime Militia (CMM) or the People’s Armed Forces Maritime Militia (PAFMM)—to defend its maritime claims. The CMM/PAFMM essentially consists of fishing-type vessels with armed crew members. In the view of some observers, the CMM/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. policymakers and analysts have paid increasing attention to the role of the CMM/PAFMM as a key tool for implementing China’s salami-slicing strategy.¹⁹³ DOD states the following about the PAFMM:

193 See, for example, the following items, which are grouped by year of publication: Items published in 2024: Helen Davidson, “China’s Maritime Militia: The Shadowy Armada Whose Existence Beijing Rarely Acknowledges,” Guardian, June 12, 2024; Philip Heijmans, “China Militia Presence Increases in South China Sea, Report Says,” Bloomberg, February 28, 2024 (reporting on the following item); “Wherever They May Roam: China’s [maritime] Militia in 2023,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), February 28, 2024. Items published in 2023: Agnes Chang and Hannah Beech, “Fleets of Force, How China Strong-Armed Its Way Into Dominating the South China Sea,” New York Times, November 16, 2023; Brad Lendon, “‘Little Blue Men’: Is a Militia Beijing Says Doesn’t Exist Causing Trouble in the South China Sea?” CNN, August 12, 2023. Items published in 2022: “The Ebb and Flow of Beijing’s South China Sea Militia,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), November 9, 2022; Samuel Cranny-Evans, “Analysis: How China’s Coastguard and Maritime Militia May Create Asymmetry at Sea,” Jane’s Defence Weekly, July 13, 2022. Items published in 2021: Zachary Haver, “Unmasking China’s Maritime Militia,” BenarNews, May 17, 2021; Ryan D. Martinson, “Xi Likes Big Boats (Coming Soon to a Reef Near You),” War on the Rocks, April 28, 2021; Ryan D. Martinson, “Manila’s Images Are Revealing the Secrets of China’s Maritime Militia, Details of the Ships Haunting Disputed Rocks Sshow China’s Plans,” Foreign Policy, April 19, 2021; Brad Lendon, “Beijing Has a Navy It Doesn’t Even Admit Exists, Experts Say. And It’s Swarming Parts of the South China Sea,” CNN, April 13, 2021; Samir Puri and Greg Austin, “What the Whitsun Reef Incident Tells Us About China’s Future Operations at Sea,” International Institute for Strategic Studies (IISS), April 9, 2021; Andrew S. Erickson and Ryan D. Martinson, “Records Expose China’s Maritime Militia at Whitsun Reef, Beijing Claims They Are Fishing Vessels. The Data Shows Otherwise,” Foreign Policy, March 29, 2021; Zachary Haver, “China’s Civilian Fishing Fleets Are Still Weapons of Territorial Control,” Center for Advanced China Research, March 26, 2021; Drake Long, “Chinese Maritime Militia on the Move in Disputed Spratly Islands,” Radio Free Asia, March 24, 2021; Andrew S. Erickson, “China’s Secretive Maritime Militia May Be Gathering at Whitsun Reef, Boats Designed to Overwhelm Civilian Foes Can Be Turned into Shields in Real Conflict,” Foreign Policy, March 22, 2021. Items published in 2019: 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. Items published in 2018: 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. Item published in 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, Naval War College, China Maritime Studies Institute, Newport, RI, March 2017, 22 pp.

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China’s Maritime Militia (CMM) is a subset of the PRC’s national militia, an armed reserve force of civilians available for mobilization that is ultimately subordinate to the CMC through the National Defense Mobilization Department. Throughout China, militia units organize around towns, villages, urban sub-districts, and enterprises and vary widely in composition and mission.

CMM vessels train with and assist the People’s Liberation Army Navy (PLAN) and the China Coast Guard (CCG) in tasks such as safeguarding maritime claims, surveillance and reconnaissance, fisheries protection, logistics support, and search and rescue. These operations traditionally take place within the FIC along China’s coast and near disputed features in the SCS such as the Second Thomas Shoal, Scarborough Reed, and Luconia Shoal. However, the presence of possible CMM vessels mixed in with Chinese fishing vessels near Indonesia’s Natuna Island outside of the “nine-dashed line” on Chinese maps indicated a possible ambition to expand CMM operations within the region. The PRC employs the CMM in gray zone operations, or “low-intensity maritime rights protection struggles,” at a level designed to frustrate effective response by the other parties involved. The PRC employs CMM vessels to advance its disputed sovereignty claims, often amassing them in disputed areas throughout the SCS and ECS. In this manner, the CMM plays a major role in coercive activities to achieve the PRC’s political goals without fighting and these operations are part of broader Chinese military theory that sees confrontational operations short of war as an effective means of accomplishing strategic objectives.

CMM units have been active for decades in incidents and combat operations throughout China’s near seas and in these incidents CMM vessels are often used to supplement CCG cutters at the forefront of the incident, giving the Chinese the capacity to outweigh and outlast rival claimants. From September 2021 to September 2022, maritime militia vessels were a constant presence near Iroquois Reef in the Spratly Islands within the Philippines EEZ. Other notable examples include standoffs with the Malaysia drill ship West Capella (2020), defense of China’s HYSY-981 drill rig in waters disputed with Vietnam (2014), occupation of Scarborough Reef (2012), and harassment of USNS Impeccable and Howard O. Lorenzen (2009 and 2014). Historically, the maritime militia also participated in China’s offshore island campaigns in the 1950s, the 1974 seizure of the Paracel Islands from South Vietnam, the occupation of Mischief Reef in the Spratly Islands in 1994.

The CMM also protects and facilitates Chinese fishing vessels operating in disputed waters. From late December 2019 to mid-January 2020, a large fleet of over 50 Chinese fishing vessels operated under the escort of multiple China Coast Guard patrol ships in Indonesian claimed waters northeast of the Natuna Islands. At least a portion of the Chinese ships in this fishing fleet were affiliated with known traditional maritime militia units, including a maritime militia unit based out of Beihai City in Guangxi province. While most traditional maritime militia units operating in the SCS continue to originate from townships and ports on Hainan Island, Beihai is one of a number of increasingly prominent maritime militia units based out of provinces in mainland China. These mainland based maritime militia units routinely operate in the Spratly Islands and in the southern SCS, and their operations in these areas are enabled by increased funding from the Chinese government to improve their maritime capabilities and grow their ranks of personnel.

[start of text box] CMM AND LAND RECLAMATION IN THE SOUTH CHINA SEA

Since at least 2014, CMM vessels have engaged in covert small scale reclamation activity and likely caused physical changes observed at multiple unoccupied features in the Spratly Islands, including Lankiam Cay, Eldad Reef, Sandy Cay, and Whitsun Reef. Beijing likely is attempting to covertly alter these features so that it can portray them as naturally formed high tide elevations capable of supporting PRC maritime claims out to the farthest extent of the nine-nash line. In contrast to the PRC large-scale reclamation program, which was overt and where the original status of occupied features is well documented, the less well-

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known historical record about many of the unoccupied features makes them more susceptible to PRC efforts to shape international opinion regarding the status of the features. [end of text box]

Through the National Defense Mobilization Department, Beijing subsidizes various local and provincial commercial organizations to operate CMM vessels to perform “official” missions on an ad hoc basis outside of their regular civilian commercial activities. CMM units employ marine industry workers, usually fishermen, as a supplement to the PLAN and the CCG. While retaining their day jobs, these mariners are organized and trained, often by the PLAN and the CCG, and can be activated on demand.

Since 2014, China has built a new Spratly backbone fleet comprising at least 235 large steel-hulled fishing vessels, many longer than 50 meters and displacing more than 500 tons. These vessels were built under central direction from the PRC government to operate in disputed areas south of 12 degrees latitude that China typically refers to as the “Spratly Waters,” including the Spratly Islands and southern SCS. Spratly backbone vessels were built for prominent CMM units in Guangdong, Guangxi, and Hainan Provinces. For vessel owners not already affiliated with CMM units, joining the militia was a precondition for receiving government funding to build new Spratly backbone boats. As with the CCG and PLAN, new facilities in the Paracel and Spratly Islands enhance the CMM’s ability to sustain operations in the SCS.

Starting in 2015, the Sansha City Maritime Militia in the Paracel Islands has been developed into a salaried full-time maritime militia force with its own command center and equipped with at least 84 purpose-built vessels armed with mast-mounted water cannons for spraying and reinforced steel hulls for ramming. Freed from their normal fishing responsibilities, Sansha City Maritime Militia personnel – many of whom are former PLAN and CCG sailors – train for peacetime and wartime contingencies, often with light arms, and patrol regularly around disputed South China Sea features even during fishing moratoriums.

The Tanmen Maritime Militia is another prominent CMM unit. Homeported in Tanmen township on Hainan Island, the formation was described by Xi as a “model maritime militia unit” during a visit to Tanmen harbor in 2013. During the visit, Xi encouraged Tanmen to support “island and reef development” in the SCS. Between 1989 and 1995, the Tanmen Maritime Militia, under the authority of the PLAN Southern Theater Navy (then the South Sea Fleet), was involved in the occupation and reclamation of PRC outposts in the Spratly Islands, including Subi Reef, Fiery Cross Reef, and Mischief Reef.¹⁹⁴

Apparent Narrow Definition of “Freedom of Navigation”¹⁹⁵

194 Department of Defense, Annual Report to Congress [on] Military and Security Developments Involving the People’s Republic of China 2023, released October 19, 2023, pp. 80-82.

195 For additional discussion, see Jonathan G. Odom, “Effort to Discredit U.S. Freedom of Navigation Report Falls Short,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), August 20, 2020.

196 Marc Jayson Cayabyab, “AsPac Signs Communique on Freedom of Navigation,” Philippine Star, November 26, 2023, which states that the communique was signed at the annual meeting of Asia Pacific Parliamentary Forum (APPF), and that the other countries were the Philippines, Australia, Brunei, Cambodia, Canada, Chile, Indonesia, Japan, South Korea, Laos, Malaysia, Mexico, Federated States of Micronesia, Papua New Guinea, Peru, Russia, Thailand, and Vietnam.

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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 PRC 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-PRC fishing vessels—something that some observers regard as a form of interfering with freedom of navigation for commercial ships.

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.”¹⁹⁷

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.¹⁹⁸

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.

197 Jim Gomez, “Chinese Diplomat Outlines Limits to Freedom of Navigation,” Military Times, August 12, 2015.

198 Erik Slavin, “Chinese Admiral Contests Freedom of Navigation in South China Sea,” Stars and Stripes, July 19, 2016.

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“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.¹⁹⁹

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 54^th 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 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.²⁰⁰

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

199 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.

200 “Chinese Expert: Freedom of Navigation ≠ Freedom of Military Operations in South China Sea,” China Military Online,” February 22, 2018.

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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.²⁰¹

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.”

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.”²⁰²

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].²⁰³

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.”²⁰⁴

201 Liu Xiaoming, “China Will Not Tolerate US Military Muscle-Flexing Off Our Shores,” Guardian (UK), June 27, 2018.

202 “No One Should Underestimate China’s Determination to Uphold Peace in South China Sea: Chinese Ambassador,” Xinhuanet, September 20, 2018.

203 Leng Shumei and Liu Xuanzun (Global Times), “China Warns US Ships to Leave Sea,” People’s Daily Online, May 7, 2019.

204 Liu Xuanzun, “US Intrusions in S.China Sea Can Be Stopped by Electromagnetic Weapons: Experts,” Global (continued...)

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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 uses of the sea and airspace guaranteed to all nations by international law.”²⁰⁵ When PRC 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.²⁰⁶

Map of Nine-Dash Line

China depicts its claims in the SCS using the so-called map of the nine-dash line—a PRC map of the SCS showing nine line segments that, if connected, would enclose an area that is often described in press reports as covering 80% or more of the part of the SCS that is situated between China, Taiwan, the Philippines, Brunei, the part of Malaysia that is on the Island of Borneo, and Vietnam (Figure E-1). The SCS as defined by the International Hydrographic Organization (IHO) also includes an additional sea area to the south and west situated between the southern tip of mainland Vietnam, the westernmost shore of Borneo, Belitung Island between Borneo and southern Sumatra, and the eastern shores of south-central Sumatra and the southern part of the Malay Peninsula. Another way to characterize this additional sea area would be to describe it as the waters between the Gulf of Thailand and the Java Sea.²⁰⁷ The State Department calculates that when the entire IHO-defined area of the SCS (including the additional sea area just described) is taken into account, the nine-dash line encloses 62% of the waters of the SCS.²⁰⁸

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. The U.S. position is that the nine-dash line is “preposterous.”²⁰⁹

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.

205 Department of Defense, Department of Defense Report to Congress, Annual Freedom of Navigation Report, Fiscal Year 2023, generated on March 8, 2024, released on May 8, 2024, PDF page 3 of 6.

206 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.

207 For maps showing the SCS as defined by the IHO, including the additional sea area just described, see “Marine Gazetteer Placedetails,” Marineregions.org, last edited January 18, 2017, accessed May 31, 2023, at https://www.marineregions.org/gazetteer.php?p=details&id=4332; and Permanent Court of Arbitration, PCA Case Nº 2013-19, In the Matter of an Arbitration before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between The Republic of the Philippines and The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, Figure 1 on page 3.

208 The State Department states, “Media reports [discussing the percentage of the SCS enclosed by the nine-dash line] frequently refer to estimates of 80 percent or higher. The exact percentage depends upon the assumed geographic extent of the South China Sea. The dashed line encompasses 62 percent of the waters in the South China Sea when using the limits that are described in the International Hydrographic Organization’s (IHO) S-23 Limits of the Oceans and Seas (1953), available from IHO at http://www.iho.int/iho_pubs/IHO_Download.htm#S-23. The S-23 describes the limits for the South China Sea as including the Taiwan Strait, the Gulf of Tonkin, and what is sometimes referred to as the Natuna Sea.” (United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Ocean and Polar Affairs, Limits in the Seas No. 143, China: Maritime Claims in the South China Sea, December 5, 2014, p. 4, footnote 11.)

209 Department of State, A Free and Open Indo-Pacific, Advancing a Shared Vision, November 4, 2019, states on page (continued...)

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The map of the nine-dash line, also called the U-shaped line or the cow tongue,²¹⁰ 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.²¹¹

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.²¹²

The map does not always have exactly nine dashes. Early versions of the map had as many as 11 dashes, and maps of China published by the PRC government in June 2014 and August 2023 include 10 dashes.²¹³ 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.²¹⁴ 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,

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.”

210 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.

211 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 May 31, 2023, at http://chinausfocus.com/peace-security/interpreting-the-u-shape-line-in-the- south-china-sea/.

212 Communication from China to the United Nations dated May 7, 2009, English version, accessed May 31, 2023, at https://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.

213 Regarding the August 2023 map, see, for example, Andreas Aditya Salim, “China’s Fluctuating South China Sea Dash Lines,” Jakarta Post, September 6, 2023; Colin Clark, “New Chinese 10-Dash Map Sparks Furor across Indo- Pacific: Vietnam, India, Philippines, Malaysia,” Breaking Defense, September 1, 2023; Cliff Harvey Venzon, “China’s Fresh Map Claims Over Taiwan, Disputed Sea Stir Protests,” Bloomberg, September 1, 2023. For an article discussing the June 2014 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.

214 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 May 31, 2023, 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. For a more general discussion of ambiguity in China’s statements regarding the SCS, see Oriana Skylar Mastro, “What are China’s Leaders Saying about the South China Sea? The Rhetoric Weaves between Cooperative and Competitive, Leaving the Question of What—and Who—to Believe,” Interpreter, February 24, 2021.

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specifies that China claims sovereignty over all the island groups inside the nine line segments.²¹⁵ 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.²¹⁶

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.²¹⁷

215 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.

216 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.)

217 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. See also “How the ‘Nine-Dash Line’ Fuels Tensions in the South China Sea, China Has Co-Opted a Cartographic Mistake to Bully Its Neighbours,” Economist, February 10, 2023.

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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 May 31, 2023, at https://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf. The image as shown here has been cropped to eliminate additional white space around the map’s perimeter.

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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 full sovereignty over the entire area enclosed by the nine line segments. (2) The EEZs shown on the map do not represent the totality of maritime territorial claims by countries in the region. Vietnam, to cite one example, claims all of the Spratly Islands, even though most or all of the islands are outside the EEZ that Vietnam derives from its mainland coast.

A January 18, 2022, press report states

China appears to be shifting from the so-called “nine-dash line” toward a new legal theory to support its expansive claims in the South China Sea, although analysts say its alternative is also problematic under international law.

In comments to reporters last week, Malaysian Foreign Minister Saifuddin Abdullah said Beijing now “speaks less of the ‘nine-dash line’ and more often of the ‘Four Sha’.” He said the shift toward has been witnessed by member countries of the Association of Southeast Asian Nations (ASEAN) and “is even more serious” than the old claim.

“Four Sha,” or Four Sands Archipelagos, are the four island groups in the South China Sea that Beijing claims to hold “historical rights” to. China calls them “Dongsha Qundao,” “Xisha Qundao,” “Zhongsha Qundao,” and “Nansha Qundao.” Internationally, they are known as Pratas Islands, Paracel Islands, the Macclesfield Bank area and Spratly Islands.

The concept they may be eclipsing, the nine-dash line, is a U-shaped line encircling most of the South China Sea that China has been using to demarcate its sovereignty over the sea.

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An international tribunal in 2016 invalidated the line saying China has no legal basis for it. Although Beijing rejected the ruling, other nations have endorsed it.

“The nine-dash line has proven to be a really easy target for critics of China’s South China Sea claims,” Julian Ku, a professor at the Hofstra University School of Law in Long Island, New York State, said.

“It was also directly considered and rejected by the South China Sea Arbitral Tribunal in 2016.”

“China’s Four Sha theory was not directly considered by the tribunal ruling, although it would also be difficult to support,” Ku said, adding: “Still, it is a less dramatic claim and it is also not based solely on historical claims.”...

Bill Hayton, a journalist-turned-scholar who wrote an acclaimed book on the South China Sea, said the Four Sha theory has been “emerging slowly, with a boost after the arbitration tribunal ruling.”

“The Four-Sha is an attempt to develop an UNCLOS-like justification for control over the South China Sea with some sort of legal basis,” he said. UNCLOS is the acronym for the UN Convention of the Law on the Sea.

“But everyone else is still rejecting it,” Hayton added.

Each of the archipelagos in the Four Sha consists of a large number of scattered outlying features, most of which are submerged under water. Beijing insists that they are to be treated as whole units for purposes of sovereignty and maritime entitlements.

The Zhongsha Qundao, or Macclesfield Bank area, is actually entirely underwater, and not an archipelago, experts say.

Ku from the Hofstra University said although the first-known attempt by Chinese officials to advance Four Sha as a new legal theory was recorded at a closed-door meeting with U.S. State Department officials in 2017, “the Four Sha are not new to China’s claims in the South China Sea.”

The Law on the Territorial Sea and the Contiguous Zone of the People’s Republic of China, adopted by China in 1992, declared the four island groups. They were also mentioned in a 2016 white paper issued by China disputing the Philippines’ claims in the South China Sea arbitral process.

“These new Chinese legal justifications are no more lawful than China’s nine-dash line claim but it is more confusing and less simple to criticize,” Ku said.

A U.S. State Department report on China’s South China Sea claims that was published this month, ‘Limits in the Seas’, does not mention Four Sha concept. But it does analyze the People’s Republic of China (PRC) sovereignty claim over Dongsha, Xisha, Zhongsha and Nansha. It concludes that China’s assertions of sovereignty are “unlawful.”²¹⁸

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.²¹⁹ It can be noted, however, that there are significant differences between China’s approach to its near-

218 Radio Free Asia, “Malaysian FM Sees Shift in China’s Justification of Sweeping South China Sea Claims,” Radio Free Asia, January 18, 2022.

219 See, for example, Robert D. Kaplan, “China’s Budding Ocean Empire,” The National Interest, June 5, 2014.

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seas region and the U.S. approach—both in the 19^th and 20^th 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.²²⁰

April 2023 Remarks by Commander, Office of Naval Intelligence

In April 5, 2023, remarks at a conference, Rear Admiral Mike Studeman, Commander, Office of Naval Intelligence (ONI) stated the following about the actions of China’s military forces:

Russia is not alone in playing with fire in the international commons and risking serious escalation. Like its close friend, China seems to think it’s also okay to conduct high-risk activities with its frontline forces.

The Chinese have been periodically flying their fighters much closer to U.S. aircraft than ever before. For many years, the Chinese would react to U.S. operations in international airspace, but they would stand-off by a matter of miles on average. However, in the last few years, we’ve experienced over 100 fighter intercepts that have approached within 100 feet of U.S. and allied aircraft, sometimes within 10 to 20 feet of those aircraft. This means that if there’s one single twitch of the stick in the cockpit of those fighters, disaster is just a second away. This photo (referring to supporting graphics) shows how close a PRC J-11 fighter jet flew near the cockpit of a U.S. RC-135, one of our unarmed surveillance aircraft flying in international airspace.

These kinds of dangerous PRC behaviors are not just concentrated against the U.S., but are also directed at our allies. In May 2022, a Chinese J-16 fighter harassed an unarmed Australian P-8 patrol aircraft operating in international airspace in the eastern portion of the South China Sea, far away from China. While crossing in front, without warning the Chinese pilot dispensed clouds of chaff, the thin aluminum strips used to evade a radar- guided missile in combat. The chaff was ingested into the jet engines of the Australian aircraft, endangering the crew, which was lucky to bring back the jet safely.

In the East China Sea, Chinese fighters have also harried Canadian patrol aircraft engaged in patrols in international airspace designed to help enforce U.N. Security Council Resolution sanctions against North Korea. China signed on to those U.N. resolutions, yet still acts in risky, highly assertive ways that hazard air crews. These kinds of interactions are occurring all too frequently, though China will either deny they occur or blame others when they occur.

It’s not just close proximity operations that we worry about. China routinely engages in radio intimidation, giving repeated warnings to ships and aircraft operating in international spaces, threatening consequences. Threatening with language insinuating that China has unilateral control over what the rest of the world recognizes as international air and waterspace.

On the surface of the sea, Chinese Maritime Militia vessels, the China Coast Guard, and the PLA Navy operate in synchronicity to pressure foreign forces inside the so-called “nine-dashed line,” which is China’s massive, illegal, extraterritorial claim to most of the South China Sea. The Militia and Coast Guard have rammed foreign ships, water cannoned other vessels, interfered with legitimate resource exploration activities sponsored by other nations, driven off Southeast Asia nations’ fishermen in their own waters, and engaged in

220 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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many other harassment tactics as they try to enforce their unlawful claims and cow other nations into giving China de facto control of whatever Beijing unilaterally claims in contravention of the U.N. Convention of the Law of the Sea (UNCLOS),

When it chooses, China also intentionally violates COLREGs and CUES, two agreements designed for safety at sea. COLREGs are International Regulations for Preventing Collisions at Sea, which were published by the International Maritime Organization in 1972. CUES stands for the Code for Unplanned Encounters at Sea, which has been in existence since 2014. China has signed both, but ignores them at unpredictable times. One example is a PLA LUYANG destroyer dangerously cutting across the bow of a US destroyer in 2018. Another Chinese tactic we’ve seen recently involves a PLA auxiliary putting themselves on a collision course with a foreign vessel, falsely signaling that they’ve lost control of steerage, and claiming “stand-on” rights to force the other ship to give way and change course. These behaviors reflect a brazen disregard for basic safety guidelines and show how flagrantly China flouts international strictures they promised to abide.

The Chinese also menace with military-grade lasers, like the recent case of a Coast Guard ship lasing a Philippine resupply ship making for one of the Philippine’s outposts in the South China Sea. True professionals, the Philippines have recognized the best way to deal with this is not by responding with guns or missiles. The know their best “weapon system” is a video camera to show the world what’s happening and expose China’s pattern of bullying and unsafe behavior. China also directed eye-damaging lasing against an Australian patrol aircraft monitoring a PLA Task Group operating just north of Australia, and in the past has used lasers against U.S. pilots landing in Djibouti.

There are other ways China systematically bends, breaks, or tries to skirt around international norms, conventions, and laws. For ten years, the Chinese have been covertly attempting to build up a number of cays in the Spratly Islands zone. We have seen them try to raise submerged or partly submerged sandbars and reefs to become above-water features by dumping loads of sandbags. Their auxiliaries have been offloading tractors to bulldoze sand around to further enlarge these features.

The Chinese lawfare gambit is to try to use these features as anchor points to claim exclusive economic zones and territorial water rights using a new rationale they concocted called “offshore archipelagos for continental states.” China knows manmade islets don’t qualify for any Exclusive Economic Zone (EEZ) claims, so they try to build them up secretly and pretend they naturally formed. At the same time, they are desperately trying to reshape the U.N. Convention on the Law of the Sea (UNCLOS), or at least alter the way its interpreted, which today clearly defines what is a continental state and what is an archipelagic state. China is definitively, based on many factors under UNCLOS, the former and not the latter. (Fiji, Philippines, Indonesia, however, are examples of nations that are officially able to claim archipelagic status.)

Just like their unlawful claim to own everything inside the “nine-dashed line,” most recently Beijing has illegally claimed jurisdiction over the Taiwan Strait, a highly- trafficked international waterway. More disturbingly, Beijing has started to slowly condition the region to the possibilities of “boarding and inspections” in these international spaces using its Maritime Safety Administration forces. China is likely going to slowly, patiently, lay the groundwork to justify future extraterritorial and extralegal actions in the Taiwan Strait, either directed at Taiwan or any other foreign forces it feels shouldn’t operate there—all of which constitutes a direct threat to a major international sea line of communication.

Not only does the region have to worry about what China’s frontline forces are doing beyond their legitimate borders as they try to control more areas in the First Island China, but many countries have been confronted with even more invasive operations. China’s auxiliaries often operate without permission in other nations’ EEZs doing military and resource surveys. Chinese distant water fishing fleets continue to illegally overexploit and

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deplete fishing stocks in other nations’ littorals. And Chinese surveillance balloons have recklessly and repeatedly flown through scores of nations’ sovereign airspaces in clear violation of international law.

DOES XI JINPING HAVE CONTROL OVER HIS FRONTLINE FORCES?

All of these activities beg several questions. The first one we need to ask ourselves is whether or not Xi Jinping has lost control of his frontline forces. Are the frontline forces free to do what they like, or are these high-risk tactics deliberated on and approved on high by Xi Jinping?

Well, first, it’s clear that Xi Jinping wants to be in control of everything. In a remarkable bureaucratic feat of maneuvering, Xi has been able to throw out the collective leadership practices that marked the last 50 years of how China made decisions. He has concentrated more power than anyone since Mao. He has successfully placed himself in charge of all major “Leading Groups,” which coordinate everything from national security to domestic policy. Xi also eliminated the power of other networks and factions that had been serving as counterbalancing forces within the Chinese decision-making system. Recall the image of Hu Jintao, the former president, being physically lifted out of his seat, manhandled and escorted out of the last National Party Congress. That was Xi symbolically proclaiming there is no other power except his own in today’s China. So, Xi is clearly in charge, and he’s notoriously architected a chain of command so that all major decisions either flow up or down from him.

Let’s consider a second possibility: Has Xi Jinping unleashed forces that he can't control? Has he given excess license to his subordinates to take actions at the tactical level, even if they carry potential strategic effects? Do commanders of frontline forces exercise too much freedom of action, because Xi is preoccupied or overburdened?

Indeed, it’s hard to believe that Xi can maintain enough span of control to allow him to have cognizance of everything that his forces are doing. Overconcentration of power at the top naturally creates gaps and seams in governance. It is very possible Xi has been surprised, pretended he wasn’t, and covered down with damage control measures while trying to sustain the image of infallibility of his rule.

A glimmer of insight into this dynamic takes us out to the far west of China, to the Line of Actual Control (LAC) with India, where an aggressive Western Military Region commander orchestrated patrols and set up encampments beyond China’s lines in the first of a series of major provocations, violating years of protocols that had kept peace on the LAC. The friction ultimately led to dozens of deaths and bloodletting in Galwan Valley in mid-2020, creating near-war conditions between two nuclear powers and quickly destroying years of hard-earned bilateral trust. In this case study, one has to conclude Xi Jinping is either geopolitically incompetent…or Xi was compelled to provide retrospective support, doubling down on the miscalculation of his generals. To some, it smells a lot like a military region commander became the tail that wagged the Beijing dog.

A third important question: Does Xi Jinping actively encourage assertive, even belligerent execution of his policies because he values loyalty to the China dream above everything else, literally at almost any cost? In the fever to realize China’s rise, is he willing to brook almost anything that his forces do so long as China ends up being advantaged, comes out on top, or looks strong? It’s reasonable to think that Xi may be either explicitly or implicitly sending the message down chain that it’s better to over-execute than to under-execute. It’s better to err on the side of aggressiveness. So Xi, in effect, may be consciously letting his wolf warriors and hawks loose on China’s neighbors and other nations.

IMPLICATIONS OF XI JINPING’S CHOICES

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Let’s put this all back together. The truth about the motivations, behaviors, and controls over China’s frontline forces is likely found somewhere in the middle of all three of the central questions offered above.

Chairman Xi has certainly emerged as one of the most powerful leaders China has ever seen. He does act like an emperor eagerly building empire. He clearly whips up fervency for China’s rejuvenation. And he does support using almost any measure and method available to achieve his dream of supremacy, the sooner the better. With a remarkable degree of tone-deafness, Xi continues to demonstrate a willingness to sanction tactics and approaches long after they prove to be counterproductive to China’s reputation and long- term interests, even if they erode trust for China in the region, and even if they make everything the PRC do seem suspect.

We have strong indications that Xi Jinping is generally aware of most things his frontline forces are doing, but not everything they are doing, which is perhaps a function of the unwieldiness of China’s governance model. History warns us of the dangers of dictatorships, the distortions in totalitarian states, where the truth doesn't always flow quickly to an all-powerful authoritarian. Bad news is adulterated on the way up to Big Brother. Half-truths, falsities, incomplete data, and rosier-than-right reports thrive in bureaucratically threatening systems, because civil servants and generals are perpetually scared. They quite naturally protect themselves because there are few safeguards or protections for individuals. And history tells us that in tyrannical societies of this nature, this phenomenon is only going to get worse with time as information is increasingly modified to provide news the autocrat wants to hear.

What this means, overall, is that we're living in more unpredictable and dangerous times, when anything can happen. Going forward, the Indo-Pacific region and the world must not just contend with the dread of a hulking, temperamental China, but also its ever-growing war machine, which is a destabilizing force unto itself. We must not just grapple with the idea that China is becoming increasingly comfortable with using raw, naked power to advance its interests in almost every sector. Now we also need to worry about Chinese minions of all stripes that are eager to please, feel like they have a license to over-execute, and in their zealotry may end up committing a number of tactical mistakes or mishaps that could result in ruinous strategic outcomes. Recall the 2001 disaster, when an over- exuberant and under-skilled Chinese pilot hit a U.S. EP-3 operating on a routine patrol in international airspace.

The U.S. recognizes all these dangers, of course, and is responsibly trying to make sure we have reliable lines of communication with the Chinese, including “hot lines.” While we have multiple physical means of communicating with the PLA, the CCP generally continues to view communications as a lever to reward or punish not just the U.S., but nearly all foreign interlocutors. Simply stated, the PLA will talk only when they perceive such communication as an advantage—not, unfortunately, during an unfolding crisis, not following an incident, and to not to discuss strategic frictions. It would be in their best interest to do so, of course, especially since senior Chinese leaders may get a better set of facts (and sooner) from the American side than their own.

Meanwhile we can expect China to continue executing its grand strategy, which involves applying significant energy to advance its creeping expansionistic agenda. They’ll move forward using enticements, like dangling Belt and Road Initiative capital, and they’ll move forward using “gray zone” coercion, because they think these carrots and sticks work. But, unfortunately, we may not be able to trust that Xi is going to be sufficiently in control of his frontline forces.

This problem will likely get worse as China fields more unmanned systems. China is already deploying thousands of unmanned systems and the prospects that China will employ them for additional surveillance, harassment, exploitation, interference, and intimidation is high. We’ve already seen China deploy an incredible number of buoys—

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floating and anchored, unmanned surface vehicles, and unmanned underwater vehicles in the First Island Chain, around Taiwan, West Philippine Sea, Bering Sea, Central Pacific, near Australia, Indian Ocean, polar regions, and even around Africa. What are they doing with all these systems, the world should wonder?

In the end, if you exercise ultimate power, then you also own ultimate responsibility for what your forces do. Xi is the authoritarian atop an absolutist state, and he has the power to alter what his forces do or don’t do. Xi remains the accountable entity for all actions of his frontline forces.

CHINA’S RATIONALE FOR AGGRESSIVE FRONTLINE FORCE BEHAVIORS

If a Chinese official was here, he would reject all the above and claim China is the real victim in all this. He would say the U.S. remains locked into a “Cold War mindset” using outdated alliance systems, or blocs, that threaten China. He would declare that U.S. operations in the Indo-Pacific generate friction among nations and profess that our presence is fundamentally destabilizing. He would say America shouldn't be in the Western Pacific in the first place. He might mention what a Chinese Defense Minister said years ago, that “Asia is for Asians,” a term coined by Imperial Japan in WWII—the same regime that touted the “East Asian Co-Prosperity Sphere” (which, by the way, has striking parallels to China’s Belt and Road Initiative language).

The PRC official would say America and its allies constantly operate in China’s waters, in China’s airspace, or on China’s periphery. He would never admit that U.S. forces are actually operating lawfully in the international commons. He would proclaim that foreign air and maritime operations anywhere inside the first and second island chains are designed to keep China down, stop its rise, contain, encircle, and threaten China’s “core sovereignty” interests.

Truth told, this perspective makes a whole lot of sense if you're stuck in a paranoiac Marxist-Leninist-style government that has a fundamental need of an archenemy—a longstanding opponent that China can blame for whatever ills affect the country, whatever sacrifices the country must make, or whatever actions they feel they must take externally in the name of “defense” for their country against a supposed implacable hegemon. This fear mongering is never going to go away on the Chinese side.

For all these reasons, China thinks America and its allies need to be pushed back and out. And they constantly experiment with novel ways to do that. Chinese academies, think tanks, and the PLA work round the clock to develop new tactics and techniques for their frontline forces, and they keep using whatever measures they can get away with—no matter how risky—if they think it helps achieve China’s goals.

On 60 minutes, Admiral Paparo, the Pacific Fleet commander, recently asked an important question. When China talks about America containing them, he asks, “China, are you doing anything that should be contained?” An analogy applies here. It’s like your neighbor not just claiming their own house and yard, but the public street in front of their house, the sidewalks, and then your own front lawn. And when you go out to deal with the attack dogs the neighbor left on your own front lawn, the offending neighbor himself feigns offense and cries, “you're containing me!” Perhaps the neighbor should stick to his own legal property and simply follow public ordinances instead.²²¹

221 Rear Admiral Mike Studeman, Commander, Office of Naval Intelligence, “Dangers Posed by China’s Frontline Forces,” remarks as prepared for the Sea Air and Space Conference, Washington, DC, April 5, 2023.

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Appendix F. Assessments of China’s Strengthened Position in SCS

This appendix provides additional information on assessments of China’s strengthened position in the SCS.

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 Gulf of Aden. Moreover, Beijing could leverage BRI projects to pressure nations to deny

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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.”²²²

At a January 19, 2021, hearing before the Senate Armed Services Committee on the nomination of retired General Lloyd Austin to be Secretary of Defense, the following exchange occurred (emphasis added):

SENATOR ANGUS KING:

Now we’re—we’re turning our attention and have been for the last several years to the Asia Pacific and particularly to China. And I've asked a question of a number of people that have appeared before this committee—I'd like your thoughts on what does China want? What do you believe China’s strategic goals are? Are they looking to be the dominant world power or regional hegemon? An economic power? What is their—what are their goals? Because it seems to me in order to determine how we best counter or cooperate we need to understand where they're headed.

RETIRED GENERAL LLOYD AUSTIN:

Yeah, I think it’s all of that. They’re already a regional hegemon and I think their goal is to be a dominant world power. And—and they are working across the spectrum to compete with us in a number of areas and it will take a whole of government approach to— to push back on their efforts in a credible way.

Not to say that we won't see things down the road that—that are in our best interest that we can cooperate with China on. But you know, we do things that are in our best interest. But certainly, some of the things that we've seen from them in recent past in terms of coercive behavior in the region and around the globe tend to—tend to make us believe that they really want to be a dominant world power.²²³

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.²²⁴

A March 11, 2023, press report stated

Beijing is becoming the dominant force in the South China Sea, through which trillions of dollars in trade passes each year, a position it has advanced step-by-step over the past decade. With incremental moves that stay below the threshold of provoking conflict, China has gradually changed both the geography and the balance of power in the area.

222 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.

223 Transcript of hearing as provided by CQ.com.

224 For further discussion, see CRS In Focus IF10485, Defense Primer: Geography, Strategy, and U.S. Force Design, by Ronald O'Rourke.

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The disputed sea is ringed by China, Taiwan and Southeast Asian nations, but Beijing claims nearly all of it. It has turned reefs into artificial islands, then into military bases, with missiles, radar systems and air strips that are a problem for the U.S. Navy. It has built a large coast guard that among other things harasses offshore oil-and-gas operations of outheast Asian nations, and a fishing militia that swarms the rich fishing waters, lingering for days.

The U.S. missed the moment to hold back China’s buildup in part because it was focused on collaborating with Beijing on global issues such as North Korea and Iran, and was preoccupied by wars in Iraq and Afghanistan. China also stated outright in 2015 that it didn’t intend to militarize the South China Sea....

Former U.S. and Southeast Asian officials and security analysts warn that China’s gains in the waters are now so entrenched that, short of military conflict, they are unlikely to be reversed.

“They have such a reach now into the South China Sea with sea power and air power” they could obstruct or interfere with international trade, said retired Adm. Harry B. Harris Jr., who long was a senior naval officer in the region and led the U.S. Pacific Command from 2015 to 2018. The U.S. would have to decide if it would go to war with China if it carried out such actions, he said.²²⁵

225 Niharika Mandhana, “How Beijing Boxed America Out of the South China Sea,” Wall Street Journal, March 11, 2023. See also Philip Heijmans, “Xi’s Armada Is Winning the Battle for Energy in the South China Sea,” Bloomberg, April 23, 2024.

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Appendix G. U.S. Position Regarding SCS, ECS, and EEZ Operational Rights

This appendix presents U.S. statements describing the U.S. position on issues relating to the SCS and ECS, and additional background information on the issue of operational rights of military ships in the EEZs of other countries.

Issues Relating to SCS and ECS²²⁶

On July 13, 2020, then-Secretary of State Michael Pompeo issued a statement that strengthened, elaborated, and made more specific certain elements of the U.S. position. The text of the statement is as follows:

The United States champions a free and open Indo-Pacific. Today we are strengthening U.S. policy in a vital, contentious part of that region—the South China Sea. We are making clear: Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them.

In the South China Sea, we seek to preserve peace and stability, uphold freedom of the seas in a manner consistent with international law, maintain the unimpeded flow of commerce, and oppose any attempt to use coercion or force to settle disputes. We share these deep and abiding interests with our many allies and partners who have long endorsed a rules-based international order.

These shared interests have come under unprecedented threat from the People’s Republic of China (PRC). Beijing uses intimidation to undermine the sovereign rights of Southeast Asian coastal states in the South China Sea, bully them out of offshore resources, assert unilateral dominion, and replace international law with “might makes right.” Beijing’s approach has been clear for years. In 2010, then-PRC Foreign Minister Yang Jiechi told his ASEAN counterparts that “China is a big country and other countries are small countries and that is just a fact.” The PRC’s predatory world view has no place in the 21^st century.

The PRC has no legal grounds to unilaterally impose its will on the region. Beijing has offered no coherent legal basis for its “Nine-Dashed Line” claim in the South China Sea since formally announcing it in 2009. In a unanimous decision on July 12, 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention—to which the PRC is a state party—rejected the PRC’s maritime claims as having no basis in international law. The Tribunal sided squarely with the Philippines, which brought the arbitration case, on almost all claims.

As the United States has previously stated, and as specifically provided in the Convention, the Arbitral Tribunal’s decision is final and legally binding on both parties. Today we are aligning the U.S. position on the PRC’s maritime claims in the SCS with the Tribunal’s decision. Specifically

• The PRC cannot lawfully assert a maritime claim—including any Exclusive Economic Zone (EEZ) claims derived from Scarborough Reef and the Spratly Islands—vis-a-vis the Philippines in areas that the Tribunal found to be in the Philippines’ EEZ or on its continental shelf. Beijing’s harassment of Philippine

226 For examples of statements of the U.S. position other than those shown here, see Michael Pillsbury, ed., A Guide to the Trump Administration’s China Policy Statements, Hudson Institute, August 2020, 253 pp. Examples can be found in this publication by searching on terms such as “South China Sea,” East China Sea,” “freedom of navigation,” and “freedom of the seas.”

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fisheries and offshore energy development within those areas is unlawful, as are any unilateral PRC actions to exploit those resources. In line with the Tribunal’s legally binding decision, the PRC has no lawful territorial or maritime claim to Mischief Reef or Second Thomas Shoal, both of which fall fully under the Philippines’ sovereign rights and jurisdiction, nor does Beijing have any territorial or maritime claims generated from these features.

• As Beijing has failed to put forth a lawful, coherent maritime claim in the South China Sea, the United States rejects any PRC claim to waters beyond a 12- nautical mile territorial sea derived from islands it claims in the Spratly Islands (without prejudice to other states’ sovereignty claims over such islands). As such, the United States rejects any PRC maritime claim in the waters surrounding Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), waters in Brunei’s EEZ, and Natuna Besar (off Indonesia). Any PRC action to harass other states’ fishing or hydrocarbon development in these waters—or to carry out such activities unilaterally—is unlawful.

• The PRC has no lawful territorial or maritime claim to (or derived from) James Shoal, an entirely submerged feature only 50 nautical miles from Malaysia and some 1,000 nautical miles from China’s coast. James Shoal is often cited in PRC propaganda as the “southernmost territory of China.” International law is clear: An underwater feature like James Shoal cannot be claimed by any state and is incapable of generating maritime zones. James Shoal (roughly 20 meters below the surface) is not and never was PRC territory, nor can Beijing assert any lawful maritime rights from it.

The world will not allow Beijing to treat the South China Sea as its maritime empire. America stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources, consistent with their rights and obligations under international law. We stand with the international community in defense of freedom of the seas and respect for sovereignty and reject any push to impose “might makes right” in the South China Sea or the wider region.²²⁷

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.²²⁸

In an April 22, 2020, statement, then-Secretary of State Mike Pompeo stated

227 Department of State, “U.S. Position on Maritime Claims in the South China Sea,” press statement, Michael R. Pompeo, Secretary of State, July 13, 2020.

228 Department of Defense, “China Coast Guard Sinking of a Vietnam Fishing Vessel,” April 9, 2020.

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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.²²⁹

An April 29, 2020, statement from the U.S. Navy 7^th Fleet stated

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

229 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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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.²³⁰

Regarding a call between Secretary of State Antony Blinken and Philippine Secretary of Foreign Affairs Locsin, a January 27, 2021, State Department statement stated that in the call, Blinken

reaffirmed that a strong U.S.-Philippine Alliance is vital to a free and open Indo-Pacific region. Secretary Blinken stressed the importance of the Mutual Defense Treaty for the security of both nations, and its clear application to armed attacks against the Philippine armed forces, public vessels, or aircraft in the Pacific, which includes the South China Sea. Secretary Blinken also underscored that the United States rejects China’s maritime claims in the South China Sea to the extent they exceed the maritime zones that China is permitted to claim under international law as reflected in the 1982 Law of the Sea Convention. Secretary Blinken pledged to stand with Southeast Asian claimants in the face of PRC pressure.²³¹

On February 19, 2021, the State Department stated that

we reaffirm the [above-cited] statement of July 13^th, 2020 [by then-Secretary of State Pompeo] regarding China’s unlawful and excessive maritime claims in the South China Sea. Our position on the PRC’s maritime claims remains aligned with the 2016 Arbitral Tribunal’s finding that China has no lawful claim in areas it found to be in the Philippines exclusive economic zone or continental shelf.

We also reject any PRC claim to waters beyond the 12 nautical mile territorial sea from islands it claims in the Spratlys. China’s harassment in these areas of other claimants, state hydrocarbon exploration or fishing activity, or unilateral exploitation of those maritime resources is unlawful.²³²

On March 16, 2021, following a U.S.-Japan “2+2” ministerial meeting that day in Tokyo between Secretary of State Blinken, Secretary of Defense Lloyd Austin, Japanese Foreign Minister Toshimitsu Motegi, and Japanese Defense Minister Nobuo Kishi, the U.S.-Japan Security Consultative Committee released a U.S.-Japan joint statement for the press that stated in part:

Amid growing geopolitical competition and challenges such as COVID-19, climate change, and revitalizing democracy, the United States and Japan renewed their commitment to promoting a free and open Indo-Pacific and a rules-based international order.

230 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 7^th 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.

231 Department of State, “Secretary Blinken’s Call with Philippine Secretary of Foreign Affairs Locsin,” January 27, 2021. See also Mohammad Zargham and Karen Lema, “U.S. Stands with SE Asian Countries Against China Pressure, Blinken Says,” Reuters, January 27 (updated January 28), 2021; Sebastian Strangio, “Biden Administration Reaches out to Southeast Asian Allies,” Diplomat, January 28, 2021; Ken Moriyasu, “US Vows to Defend Philippines, Including in South China Sea,” Nikkei Asia, January 29, 2021; Frances Mangosing, “New Pentagon Chief Commits Support for PH in South China Sea,” Philippine Daily Inquirer, February 10, 2021.

232 U.S. Department of State, “Department Press Briefing—February 19, 2021,” Ned Price, Department Spokesperson, Washington, DC, February 19, 2021.

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The United States and Japan acknowledged that China’s behavior, where inconsistent with the existing international order, presents political, economic, military, and technological challenges to the Alliance and to the international community. The Ministers committed to opposing coercion and destabilizing behavior toward others in the region, which undermines the rules-based international system. They reaffirmed their support for unimpeded lawful commerce and respect for international law, including freedom of navigation and overflight and other lawful uses of the sea. The Ministers also expressed serious concerns about recent disruptive developments in the region, such as the China Coast Guard law. Further, they discussed the United States’ unwavering commitment to the defense of Japan under Article V of our security treaty, which includes the Senkaku Islands. The United States and Japan remain opposed to any unilateral action that seeks to change the status quo or to undermine Japan’s administration of these islands. The Ministers underscored the importance of peace and stability in the Taiwan Strait. They reiterated their objections to China’s unlawful maritime claims and activities in the South China Sea and recalled that the July 2016 award of the Philippines-China arbitral tribunal, constituted under the 1982 Law of the Sea Convention, is final and legally binding on the parties.²³³

A July 11, 2021, statement from Secretary of State Antony Blinken issued in connection with the fifth anniversary of the July 12, 2016, arbitral tribunal ruling on the South China Sea stated

Freedom of the seas is an enduring interest of all nations and is vital to global peace and prosperity. The international community has long benefited from the rules-based maritime order, where international law, as reflected in the UN Law of the Sea Convention, sets out the legal framework for all activities in the oceans and seas. This body of international law forms the basis for national, regional, and global action and cooperation in the maritime sector and is vital to ensuring the free flow of global commerce.

Nowhere is the rules-based maritime order under greater threat than in the South China Sea. The People’s Republic of China (PRC) continues to coerce and intimidate Southeast Asian coastal states, threatening freedom of navigation in this critical global throughway.

Five years ago, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention delivered a unanimous and enduring decision firmly rejecting the PRC’s expansive South China Sea maritime claims as having no basis in international law. The Tribunal stated that the PRC has no lawful claim to the area determined by the Arbitral Tribunal to be part of the Philippines’ exclusive economic zone and continental shelf. The PRC and the Philippines, pursuant to their treaty obligations under the Law of the Sea Convention, are legally bound to comply with this decision.

The United States reaffirms its July 13, 2020 policy regarding maritime claims in the South China Sea. We also reaffirm that an armed attack on Philippine armed forces, public vessels, or aircraft in the South China Sea would invoke U.S. mutual defense commitments under Article IV of the 1951 U.S.-Philippines Mutual Defense Treaty.

We call on the PRC to abide by its obligations under international law, cease its provocative behavior, and take steps to reassure the international community that it is committed to the rules-based maritime order that respects the rights of all countries, big and small.²³⁴

A November 19, 2021, press statement by the State Department stated

233 Department of State, “U.S.-Japan Joint Press Statement,” Media Note, Office of the Spokesperson, March 16, 2021. See also Lara Jakes, Motoko Rich and John Ismay, “Visiting Japan, Top U.S. Envoys Set Combative Tone for China Talks,” New York Times, March 16, 2021.

234 State Department, “Fifth Anniversary of the Arbitral Tribunal Ruling on the South China Sea,” press statement, Antony J. Blinken, Secretary of State, July 11, 2021. See also Jennifer Hansler and Brad Lendon, “US Warns China It Stands Behind South China Sea Ruling and Is Committed to Philippine Defense,” CNN, July 12, 2021.

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Two days ago, the People’s Republic of China (PRC) Coast Guard blocked and used water cannons against Philippine resupply ships en route to Second Thomas Shoal in the South China Sea.

The United States stands with our ally, the Philippines, in the face of this escalation that directly threatens regional peace and stability, escalates regional tensions, infringes upon freedom of navigation in the South China Sea as guaranteed under international law, and undermines the rules-based international order.

On July 12, 2016, an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention, delivered a unanimous and enduring decision firmly rejecting the PRC’s claims to Second Thomas Shoal and to waters determined to be part of the Philippines’ exclusive economic zone. The PRC and the Philippines, pursuant to their treaty obligations under the Law of the Sea Convention, are legally bound to comply with this decision. The PRC should not interfere with lawful Philippine activities in the Philippines’ exclusive economic zone.

The United States stands with our Philippine allies in upholding the rules-based international maritime order and reaffirms that an armed attack on Philippine public vessels in the South China Sea would invoke U.S. mutual defense commitments under Article IV of the 1951 U.S. Philippines Mutual Defense Treaty.

The United States strongly believes that PRC actions asserting its expansive and unlawful South China Sea maritime claims undermine peace and security in the region.²³⁵

On January 12, 2022, the State Department released a document entitled Limits in the Seas No. 150, People’s Republic of China: Maritime Claims in the South China Sea. In releasing the document, the State Department stated

The Department’s Limits in the Seas studies are a longstanding legal and technical series that examine national maritime claims and boundaries and assess their consistency with international law. This most recent study, the 150^th in the Limits in the Seas series, concludes that the PRC asserts unlawful maritime claims in most of the South China Sea, including an unlawful historic rights claim.

This study builds on the Department’s 2014 analysis of the PRC’s ambiguous “dashed- line” claim in the South China Sea.²³⁶ Since 2014, the PRC has continued to assert claims to a wide swath of the South China Sea as well as to what the PRC has termed “internal waters” and “outlying archipelagos,” all of which are inconsistent with international law as reflected in the 1982 Law of the Sea Convention.²³⁷

The executive summary of Limits in the Seas No. 150 states in part:

The PRC’s expansive maritime claims in the South China Sea are inconsistent with international law as reflected in the 1982 United Nations Convention on the Law of the Sea (“Convention”)....

The PRC claims “sovereignty” over more than one hundred features in the South China Sea that are submerged below the sea surface at high tide and are beyond the lawful limits of any State’s territorial sea. Such claims are inconsistent with international law, under

235 Department of State, “On the Situation in the South China Sea,” press statement, Ned Price, Department Spokesperson, November 19, 2021. See also Bill Gertz, “U.S. Threatens Military Response to China in South China Sea Dispute,” Washington Times, November 19, 2021.

236 Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 143 China: Maritime Claims in the South China Sea, December 5, 2014, 24 pp.

237 Department of State, “Study on the People’s Republic of China’s South China Sea Maritime Claims,” Media Note, Office of the Spokesperson, January 12, 2022.

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which such features are not subject to a lawful sovereignty claim or capable of generating maritime zones such as a territorial sea....

The PRC has either drawn, or asserts the right to draw, “straight baselines” that enclose the islands, waters, and submerged features within vast areas of ocean space in the South China Sea. None of the four “island groups” claimed by the PRC in the South China Sea (“Dongsha Qundao,” “Xisha Qundao,” “Zhongsha Qundao,” and “Nansha Qundao”) meet the geographic criteria for using straight baselines under the Convention. Additionally, there is no separate body of customary international law that supports the PRC position that it may enclose entire island groups within straight baselines....

The PRC asserts claims to internal waters, a territorial sea, an exclusive economic zone, and a continental shelf that are based on treating each claimed South China Sea island group “as a whole.” This is not permitted by international law. The seaward extent of maritime zones must be measured from lawfully established baselines, which are normally the low-water line along the coast. Within its claimed maritime zones, the PRC also makes numerous jurisdictional claims that are inconsistent with international law.

The PRC asserts that it has “historic rights” in the South China Sea. This claim has no legal basis and is asserted by the PRC without specificity as to the nature or geographic extent of the “historic rights” claimed.

The overall effect of these maritime claims is that the PRC unlawfully claims sovereignty or some form of exclusive jurisdiction over most of the South China Sea. These claims gravely undermine the rule of law in the oceans and numerous universally-recognized provisions of international law reflected in the Convention. For this reason, the United States and numerous other States have rejected these claims in favor of the rules-based international maritime order within the South China Sea and worldwide.²³⁸

On December 19, 2022, the State Department stated

The United States supports the Philippines’ continued calls upon the People’s Republic of China (PRC) to respect the international law of the sea in the South China Sea, as reflected in the UN Convention on the Law of the Sea, and its legal obligations pursuant to the 2016 arbitral ruling. The reported escalating swarms of PRC vessels in the vicinity of Iroquois Reef and Sabina Shoal in the Spratly Islands interfere with the livelihoods of Philippine fishing communities, and also reflect continuing disregard for other South China Sea claimants and states lawfully operating in the region. Furthermore, we share the Philippines’ concerns regarding the unsafe encounter that the PRC Coast Guard initiated with Philippines naval forces in the South China Sea, as documented before the Senate of the Philippines on December 14.

The United States stands with our ally, the Philippines, in upholding the rules-based international order and freedom of navigation in the South China Sea as guaranteed under international law.²³⁹

238 Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 150, People’s Republic of China: Maritime Claims in the South China Sea, January 2022, p. 1. Along with Limits in the Seas No. 150, the State Department also released a supplementary document, Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 150, People’s Republic of China:, Maritime Claims in the South China Sea, State Practice Supplement, January 2022, 94 pp. The various Limits in the Seas studies are pasted at https://www.state.gov/limits-in-the-seas/. For articles discussing Limits in the Seas No. 150, see, for example, John Grady, “Panel: New U.S. South China Sea Report Designed to Push Back Against Beijing’s Expansive Claims,” USNI News, January 25, 2022; Alec Caruana, “Having its Cake and Eating it Too, The U.S. and State Practice in Outlying Archipelagos,” Institute for China- America Studies, January 18, 2022.

239 Department of State, “U.S. Support for the Philippines in the South China Sea,” press statement, Office of the Spokesperson, December 19, 2022.

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On February 13, 2023, the State Department stated

The United States stands with our Philippine allies in the face of the People’s Republic of China (PRC) Coast Guard’s reported use of laser devices against the crew of a Philippine Coast Guard ship on February 6 in the South China Sea. The PRC’s conduct was provocative and unsafe, resulting in the temporary blindness of the crewmembers of the BRP Malapascua and interfering with the Philippines’ lawful operations in and around Second Thomas Shoal. More broadly, the PRC’s dangerous operational behavior directly threatens regional peace and stability, infringes upon freedom of navigation in the South China Sea as guaranteed under international law, and undermines the rules-based international order.

As reflected in an international tribunal’s legally binding decision issued in July 2016, the People’s Republic of China has no lawful maritime claims to Second Thomas Shoal. The United States reiterates, pursuant to the 1982 Law of the Sea Convention, the 2016 arbitral decision is final and legally binding on the PRC and the Philippines, and we call upon the PRC to abide by the ruling.

The United States stands with our Philippine allies in upholding the rules-based international maritime order and reaffirms an armed attack on Philippine armed forces, public vessels, or aircraft, including those of the Coast Guard in the South China Sea, would invoke U.S. mutual defense commitments under Article IV of the 1951 U.S. Philippines Mutual Defense Treaty.²⁴⁰

A July 11, 2023, press statement by the State Department stated

Today marks the seventh anniversary of an Arbitral Tribunal constituted under the 1982 Law of the Sea Convention firmly rejecting the People’s Republic of China’s (PRC) expansive South China Sea maritime claims, including any PRC claim to the area determined by the Arbitral Tribunal to be part of the Philippines’ exclusive economic zone and continental shelf, as well as any resources therein. Under the terms of the Convention, this ruling is final and legally binding on the Philippines and the PRC.

The United States reaffirms its July 13, 2020, policy regarding maritime claims in the South China Sea. We continue to urge Beijing to comport its maritime claims with international law as reflected in the 1982 Law of the Sea Convention; cease its routine harassment of claimant state vessels lawfully operating in their respective exclusive economic zones; halt its disruption to states’ sovereign rights to explore, exploit, conserve, and manage natural resources; and end its interference with the freedoms of navigation and overflight of states lawfully operating in the region.

We will continue working with allies and partners to advance a free and open Indo-Pacific, one that is at peace and grounded in respect for international law.²⁴¹

A March 19, 2024, press report stated:

Secretary of State Antony J. Blinken warned China on Tuesday [March 19] that an “armed” attack against Philippine vessels in the South China Sea would trigger a mutual self-defense pact between Washington and Manila, a reflection of rising tensions in the region that risk dragging the United States into armed conflict with Beijing.

240 Department of State, “U.S. Support for the Philippines in the South China Sea,” press statement, Ned Price, Department Spokesperson, February 13, 2023. See also Jim Gomez, “US Renews Warning It’ll Defend Philippines after China Spat,” Associated Press, February 14, 2023; Julia Mueller, “US Warns It Will Defend Philippines after China Laser Report,” The Hill, February 14, 2023; Niha Masih, “U.S. Criticizes China’s Use of Laser on Philippine Coast Guard,” Washington Post, February 13, 2023.

241 Department of State, “Seventh Anniversary of the Philippines-China South China Sea Arbitral Tribunal Ruling,” Press Statement, Matthew Miller, Department Spokesperson, July 11, 2023.

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But in a sign that the United States hopes to de-escalate the situation, Mr. Blinken, on a visit to Manila, gave no indication that recent Chinese provocations—which include ramming Philippine vessels and blasting them with water cannons—crossed the threshold of “armed” attacks.

Pressed during a news conference alongside his Philippine counterpart on how to deter what some analysts call China’s “gray-zone coercion tactics,” which Philippine officials say include aiming a high-powered laser at a Philippine Coast Guard vessel and temporarily blinding some crew members, Mr. Blinken pointed to diplomatic, not military, measures.

“The very visibility of those actions, I think, has provoked from a number of other countries clear statements in support of the Philippines and against these provocative actions that are a threat to peace, security, freedom of navigation and basic rights under international law,” he said.

Mr. Blinken appeared to be attempting to strike a balance at a moment when the Biden administration is trying to sustain a recent thaw in relations with Beijing while also standing firm against Chinese territorial aggression in the region.²⁴²

An August 19, 2024, press statement by the State Department stated

The United States stands with its ally the Philippines and condemns the dangerous actions by the People’s Republic of China (PRC) against lawful Philippine maritime operations in the South China Sea on August 19. PRC ships employed reckless maneuvers, deliberately colliding with two Philippine Coast Guard ships, causing structural damage and jeopardizing the safety of the crew onboard.

These actions are the latest examples of the PRC using dangerous and escalatory measures to enforce its expansive and unlawful South China Sea maritime claims. The United States calls upon the PRC to abide by international law and desist from its dangerous and destabilizing conduct.

The United States reaffirms that Article IV of the 1951 U.S.-Philippines Mutual Defense Treaty extends to armed attacks on Philippine armed forces, public vessels, or aircraft – including those of its Coast Guard – anywhere in the South China Sea.²⁴³

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.

242 Michael Crowley, “Blinken Warns China Against Armed Attack on Philippines,” New York Times, March 19, 2024.

243 U.S. Department of State, “U.S. Support for the Philippines in the South China Sea,” press statement dated August 19, 2024.

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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.²⁴⁴

As part of his prepared statement for the same hearing, Robert Scher, then-Deputy Assistant Secretary of Defense, Asian and Pacific Security Affairs, Office of the Secretary of Defense, stated that

we reject any nation’s attempt to place limits on the exercise of high seas freedoms within an exclusive economic zones [sic] (EEZ). Customary international law, as reflected in articles 58 and 87 of the 1982 United Nations Convention on the Law of the Sea, guarantees to all nations the right to exercise within the EEZ, high seas freedoms of navigation and overflight, as well as the traditional uses of the ocean related to those freedoms. It has been the position of the United States since 1982 when the Convention was established, that the navigational rights and freedoms applicable within the EEZ are qualitatively and quantitatively the same as those rights and freedoms applicable on the high seas. We note that almost 40% of the world’s oceans lie within the 200 nautical miles EEZs, and it is essential to the global economy and international peace and security that navigational rights and freedoms within the EEZ be vigorously asserted and preserved.

As previously noted, our military activity in this region is routine and in accordance with customary international law as reflected in the 1982 Law of the Sea Convention.²⁴⁵

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.²⁴⁶

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

244 [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.

245 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.

246 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 May 31, 2023, at https://www.noaa.gov/maritime-zones-and-boundaries, which states that EEZs account for 101.9 million square kilometers of the world’s approximately 335.0 million square kilometers of oceans.)

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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)²⁴⁷ that operated close to the United States or with Soviet bombers and surveillance aircraft that periodically flew close to U.S. airspace.

247 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.

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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.

The U.S. Navy states that

When the commonly recognized outer limit of the territorial sea under international law was three nautical miles, the United States recognized the right of other states, including the Soviet Union, to exercise high seas freedoms, including surveillance and other military operations, beyond that limit. The 1982 Law of the Sea Convention moved the outer limit of the territorial sea to twelve nautical miles. In 1983, President Reagan declared that the United States would accept the balance of the interests relating to the traditional uses of the oceans reflected in the 1982 Convention and would act in accordance with those provisions in exercising its navigational and overflight rights as long as other states did likewise. He further proclaimed that all nations will continue to enjoy the high seas rights and freedoms that are not resource related, including the freedoms of navigation and

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overflight, in the Exclusive Economic Zone he established for the United States consistent with the 1982 Convention.²⁴⁸

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.²⁴⁹ 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.

248 Navy Office of Legislative Affairs email to CRS dated September 4, 2012.

249 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.”²⁵⁰

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

250 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.²⁵¹

251 Andrew S. Erickson and Emily de La Bruyere, “China’s RIMPAC Maritime-Surveillance Gambit,” The National (continued...)

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In September 2014, a PRC 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.”²⁵²

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.

252 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 some additional background information on the U.S. Freedom of Navigation (FON) program.

DOD Instructions and Presidential Directives

Current and predecessor DOD Instructions and presidential directives regarding freedom of navigation and the FON program include but are not necessarily limited to the following:

• DOD Instruction S-2005.01 of October 20, 2014;²⁵³

• DOD Instruction C-2005.01 of October 12, 2005;²⁵⁴

• DOD Instruction C-5030.44 of October 12, 2005;²⁵⁵

• DOD Instruction C-2005.1 of June 21, 1983;²⁵⁶

• Presidential Decision Directive 32 of January 23, 1995;²⁵⁷

• National Security Directive 49 of October 12, 1990;²⁵⁸

• National Security Decision Directive 265 of March 16, 1987;²⁵⁹

• National Security Decision Directive 72 of December 13, 1982;²⁶⁰ and

• National Security Decision Directive 20 of January 29, 1982.²⁶¹

253 A list of DODIs that includes DODI S-2005.01 is available at https://www.esd.whs.mil/Directives/issuances/dodi/. The document is controlled (i.e., classified), and its text is not publicly available.

254 For a list that includes this document, see Cryptome, “Some DOD Directives and Instructions,” June 17, 2009, accessed May 31, 2023, at https://cryptome.org/dodi/dod-dodi.htm. As discussed in earlier versions of this CRS report (see versions dated February 8, 2023, or earlier), this DOD Instruction was previously listed by DOD at https://www.esd.whs.mil/Directives/issuances/dodi/, which at the time stated that this instruction replaced an earlier version of the document dated June 21, 1983 (i.e., DOD Instruction C-2005.1).

255 A list of DODIs that includes DODI C- 5030.44 is available at https://www.esd.whs.mil/Directives/issuances/dodi/. The document is controlled (i.e., classified), and its text is not publicly available. It is also listed at Cryptome, “Some DOD Directives and Instructions,” June 17, 2009, accessed May 31, 2023, at https://cryptome.org/dodi/dod-dodi.htm.

256 References to this document can be found in Department of Defense, Maritime Claims Reference Manual, DoD 2005. 1-M, July 12, 1990, accessed May 31, 2023, at https://apps.dtic.mil/sti/pdfs/ADA268214.pdf.

257 For the declassified text of this document, see https://irp.fas.org/offdocs/pdd/pdd-32.pdf or PDF pages 78 through 82 of 660 of the document posted at https://clinton.presidentiallibraries.us/items/show/101150. A history of the origin of the FON program published in 2019 stated that Presidential Decision Directive 32 “is the current version of the US FON policy.... ” James Kraska, “An Archival History of the Creation and Early Implementation of the Freedom of Navigation Program,” Chapter 10 (pages 206-237) of Myron H. Nordquist, John Norton Moore, and Ronán Long, editors, Cooperation and Engagement in the Asia-Pacific Region, Center for Oceans Law and Policy, Volume: 23, 2020 (publication date: November 28, 2019). The statement about Presidential Decision Directive 32 is on page 218.

258 For the declassified text of this document, see https://irp.fas.org/offdocs/nsd/nsd49.pdf.

259 For the declassified text of this document, see https://irp.fas.org/offdocs/nsdd/nsdd-265.htm.

260 For the declassified text of this document, see https://irp.fas.org/offdocs/nsdd/nsdd-72.pdf.

261 For the declassified text of this document, see https://irp.fas.org/offdocs/nsdd/nsdd-20.pdf. The document focuses primarily on U.S. participation in the negotiations that eventually produced the United Nations Convention on the Law of the Sea (UNCLOS), but also states that “the United States will also continue to exercise its rights with respect to navigation and overflight against claims that the United States does not recognize in accordance with established procedures and review for that program.”

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See also the National Security Council memorandum of February 1, 1979 that led to the formalization of the FON program in 1979.²⁶²

Legal Arguments Relating to FON Operations

In assessing U.S. FON operations that take place within 12 nautical miles of PRC-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, although the owner of features may maintain a 500-meter vessel traffic management zone to ensure navigational safety.”

262 National Security Council memorandum, Subject: Navigation and Overflight Policy Paper, February 1, 1979. The declassified text of this memorandum and its attached navigation and overflight policy paper are reprinted on pages 223-236 of James Kraska, “An Archival History of the Creation and Early Implementation of the Freedom of Navigation Program,” Chapter 10 (pages 206-237), of Myron H. Nordquist, John Norton Moore, and Ronán Long, editors, Cooperation and Engagement in the Asia-Pacific Region, Center for Oceans Law and Policy, Volume: 23, 2020 (publication date: November 28, 2019).

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• 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.”²⁶³

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 PRC-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.²⁶⁴

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 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

263 James Kraska, “The Legal Rationale for Going Inside 12,” Asia Maritime Transparency Initiative (AMTI) (Center for Strategic and International Studies [CSIS]), September 11, 2015. See also James Kraska, “The Nine Ironies of the South China Sea Mess,” The Diplomat, September 17, 2016.

264 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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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.”²⁶⁵

Regarding this same FON operation, two other observers stated the following:

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

265 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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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 around the Spratly Islands. Those are the right tools for the job where no actual coastal state claim is being challenged.

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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.²⁶⁶

266 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. Writings by Observers Regarding U.S. Strategy for SCS and ECS

This appendix presents a bibliography of some writings since January 2021 by observers regarding U.S. strategy for competing strategically with China in the SCS and ECS, organized by date, beginning with the most recent item. In some of the article titles below, COIN means counterinsurgency.

James Stavridis, “How the US Can Avoid War in the South China Sea, Washington Is Going to Have to Put Together a Broad Naval Alliance to Keep Beijing’s Aggression from Starting a Regional Conflict,” Bloomberg, August 22, 2024.

Alexander Richter, “Deterring China’s Salami Tactics,” Center for Maritime Strategy, August 8, 2024.

Oriana Skylar Mastro, “Beijing Can Take the South China Sea Without Firing a Shot,” New York Times, July 25, 2024.

Simon Weiss and Michael Beckley, “Countering Chinese Aggression in the South China Sea,” War on the Rocks, July 23, 2024.

Derek Grossman, “Philippines and Vietnam’s South China Sea Strategies Have Failed, Manila’s ‘Transparency’ and Hanoi’s ‘Opacity’ Are Outdated Approaches to Deter China,” Nikkei Asia, July 15, 2024.

Amparo Pamela Fabe and Tran My Hai Loc, Coercion in Maritime Domain: How Can the Philippines and Vietnam Counter It?, DKI APCSS [Daniel K. Inouye Asia-Pacific Center for Security Studies] Security Nexus, published online July 12, 2024, 8 pp.

Ryan Nass, “Avoiding War in the South China Sea, How America Can Support the Philippines Without Fighting China,” Foreign Affairs, July 9, 2024.

Jill Goldenziel, “China Is Afraid Of International Law—And Planning A Counter-Offensive,” Forbes, July 1, 2024.

Karishma Vaswani, “The Risky Business of Standing Up to Beijing,” Bloomberg, June 27, 2024.

Washington Examiner, “Biden Must Support the Philippines against Chinese Aggression,” Washington Examiner, June 22, 2024.

Keith Johnson, “China Tests U.S. Red Lines With Attacks on Philippine Vessels,” Foreign Policy, June 20, 2024.

Eric Cooper, Strengthening Cooperative International Maritime Law Enforcement in the Indo- Pacific, Developing a Combined Maritime Force of Coast Guards, RAND, CT-A3386-1, June 4, 2024, 13 pp. (testimony presented before the U.S. House Committee on Homeland Security, Subcommittee on Transportation and Maritime Security on June 4, 2024).

Derek Grossman, “How to Respond to China’s Tactics in the South China Sea,” Foreign Policy, May 29, 2024.

Nick Danby, “By, With, and Through at the Second Thomas Shoal,” War on the Rocks, May 20, 2024.

Quinn Marschik, “Rocks and Reefs Aren’t Worth a War with China,” National Interest, May 4, 2024.

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Thelmar Rosarda and Nathaniel Schochet, “Countering China’s Red Dragon over the South China Sea,” Breaking Defense, May 3, 2024.

Eric Cooper, “Call in the Coast Guard: How Maritime Law Enforcement Can Combat China’s Gray-Zone Aggression,” War on the Rocks, April 16, 2024.

Lisa Curtis and Nilanthi Samaranayake, Countering Coercion, Managing Chinese Gray Zone Activity in the South China Sea and Indian Ocean Region, Center for a New American Security (CNAS), March 2024 (posted online March 29, 2024), 16 pp.

Karishma Vaswani, “Beijing Is Gaslighting the Philippines on the South China Sea, The Nation Needs All the Help It Can Get to Manage Its Territorial Dispute with China. Ships, Planes and Radar Systems Would Be a Good Start,” Bloomberg, March 14, 2024.

James Siebens, “Three Ideas for Countering China in the Gray Zone,” Defense One, March 6, 2024.

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Congressional Research Service 118

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Author Information

Ronald O'Rourke Specialist in Naval Affairs

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

Congressional Research Service R42784 · VERSION 152 · UPDATED 119

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Topic areas

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Intelligence and National Security

National Defense

Report Type: CRS Report

Source: CRSReports.Congress.gov, EveryCRSReport.com, University of North Texas Libraries Government Documents Department

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U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress

U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress

Updated August 26, 2024

Summary

Contents

Figures

Tables

Appendixes

Contacts

Introduction

Background

U.S. Interests in SCS and ECS

Overview

Specific Elements

U.S. Regional Allies and Partners, and U.S. Regional Security Architecture

Principle of Nonuse of Force or Coercion

Principle of Freedom of the Seas

Trade Routes and Hydrocarbons

Interpreting China’s Role as a Major World Power

U.S.-China Relations in General

Views of U.S. Allies Elsewhere of Reliability of United States as an Ally

Maritime Territorial and EEZ Disputes Involving China

Maritime Territorial Disputes

Relationship of Maritime Territorial Disputes to EEZ Dispute

China’s Approach to SCS and ECS

Overview

Selected Elements

“Salami-Slicing” Strategy and Gray Zone Operations

Use of Coast Guard Ships and Maritime Militia

Preference for Treating Territorial Disputes on Bilateral Basis

Depiction of United States as Outsider Seeking to “Stir Up Trouble”

Island Building and Base Construction

Other Actions That Have Heightened Concerns

Apparent Narrow Definition of “Freedom of Navigation”

Position Regarding Regulation of Military Forces in EEZs

Additional Elements

Assessments of China’s Strengthened Position in SCS

U.S. Position Regarding Issues Relating to SCS and ECS

Overview

Freedom of Navigation (FON) Program

Taiwan Strait Transits

Issues for Congress

U.S. Strategy for Competing Strategically with China in SCS and ECS

Overview

Potential Broader Goals

Potential Specific Goals

U.S. Strategy for Competing in SCS and ECS Given China’s Approach

Aligning Actions with Goals

Cost-Imposing Actions

Contributions from Allies and Partners

Trump Administration’s Strategy

Biden Administration’s Strategy

Overview

Cooperation with the Philippines

Tables Showing Reported SCS FON Operations and Taiwan Strait Transits

Assessing the Administration’s Strategy

Risk of Incident, Crisis, or Conflict Involving U.S. Forces

Risk Relating to U.S. and PRC Military Operations In SCS

Risk Relating to Maritime Territorial Disputes Involving Allies

Whether United States Should Ratify UNCLOS

Legislative Activity in the 118th Congress

Legislative Activity for FY2025

FY2025 National Defense Authorization Act (NDAA) (H.R. 8070/S. 4638)

House

Other Legislative Activity

Appendix A. Maritime Territorial and EEZ Disputes in SCS and ECS

Maritime Territorial Disputes

EEZ Dispute and U.S.-PRC Incidents at Sea

Relationship of Maritime Territorial Disputes to EEZ Dispute

Appendix B. U.S. Security Treaties with Japan and Philippines

U.S.-Japan Treaty on Mutual Cooperation and Security

U.S.-Philippines Mutual Defense Treaty140

Appendix C. Treaties and Agreements Related to the Maritime Disputes

UN Convention on Law of the Sea (UNCLOS)

Overview of UNCLOS

U.S. Not a Party to UNCLOS

1983 Statement on U.S. Oceans Policy

1972 Convention on Preventing Collisions at Sea (COLREGs)

2014 Code for Unplanned Encounters at Sea (CUES)

2014 U.S.-China MOU on Air and Maritime Encounters

Legislative Activity in the 118^th Congress

U.S.-Philippines Mutual Defense Treaty¹⁴⁰