Questioning of US's surveillance in South China Sea by Mark Valencia Standoff in the South China Sea By Mark Valencia Tuesday, Aug 17, 2010, Page 8 Now that the most recent wave of China threat editorials in the Western media has passed, it is time to separate substance from atmospherics. Most of these media pieces were triggered by US Secretary of State Hillary Rodham Clinton’s statements at last month’s ASEAN Regional Forum in Hanoi including a US offer to mediate the South China Sea disputes and China’s angry response. The US has cleverly conflated some ASEAN countries’ fears of China’s aggressiveness regarding their conflicting claims to various features and ocean space in the South China Sea with its own concerns regarding freedom of navigation. However, as the US knows, or should know, China’s objections to certain US military intelligence gathering activities in its exclusive economic zone (EEZ) have little or nothing to do with its purported claim to much of the South China Sea. Indeed, China is not challenging freedom of navigation itself, but US abuse of this right. The activities of the US EP-3 planes and Navy ships, the Bowditch and the Impeccable, probably collectively, have included the active “tickling” of China’s coastal defenses to provoke and observe a response, interference with shore-to-ship and submarine communications, “preparation of the battlefield,” using legal subterfuge to evade the consent regime and tracking China’s new nuclear submarines for potential targeting as they enter and exit their base. Few countries would tolerate such provocative activities by a potential enemy without responding in some fashion. These are not passive intelligence collection activities commonly undertaken and usually tolerated by most states, but are intrusive and controversial practices that China regards as a threat of the use of force. A threat of force is a violation of the UN Charter, let alone the 1982 Convention on the Law of the Sea. These activities should be carefully examined and adjudicated by a neutral body to determine if they are “legal” or not. However, such an inquiry would risk making Clinton’s statement that the US “opposes the use or threat of force” by any claimant seem a bit hypocritical. Moreover if the ASEAN claimants Brunei, Malaysia, the Philippines and Vietnam think that the recent US statements favor their claims, they may need to think again. Clinton said that the “United States has a national interest in freedom of navigation, open access to Asia’s maritime commons and respect for international law in the South China Sea,” but just what international law is that? This statement is a bit odd coming from the only major country that has not ratified the 1982 Convention on the Law of the Sea which governs such claims and activities at sea. Nevertheless, claims by the Philippines to a large swathe of features and the sea as as part of its Kalayaan municipality and that of Malaysia to various features because they lie on its claimed continental shelf are as spurious and weak as China’s historic “nine-dashed line” claim. Vietnam and Indonesia (which has also objected to Beijing’s South China Sea claim) contrary to the 1982 convention they have ratified do not allow innocent passage of foreign warships in their territorial seas without their consent, while Malaysia does not allow foreign military exercises in its claimed EEZ. Knowing ASEAN claimants’ concerns and desiring to give China “comeuppance” regarding its lack of cooperation in punishing North Korea after the Cheonan sinking, the US verbally ambushed and embarrassed China in front of an Asian audience in its sometime nemesis, Vietnam. However, despite US arrogance, offering to “facilitate” multilateral talks on the South China Sea disputes which is what really infuriated Beijing it is clear that China has been its own worst enemy in this matter. It refused to file a joint claim with Malaysia and Vietnam to the continental shelf in the South China Sea. It then filed an objection to their claim, and attached a map with its nine-dash line ambiguously claiming most of the sea. It publicly categorized the South China sea as a “core interest” akin to Tibet and Taiwan, ie something it would fight over, and allowed its Ministry of Defense spokesperson Geng Yansheng to say “China has indisputable sovereignty of the South Sea and China has sufficient historical and legal backing” to underpin its claims. These actions and accompanying large military exercises in the area provided a diplomatic opportunity for the US and pushed the ASEAN countries into the US corner. However, it is still not clear whether China’s claim is to the features (and their territorial seas) or to the sea as well. To ameliorate ASEAN fears, China should immediately clarify exactly what it claims and why within the context of the 1982 convention. Beijing should also elaborate in contemporary and understandable “legalese” its objections to US military intelligence gathering activities in its EEZ. To counter the US diplomatic advantage, China should agree with ASEAN on a formal code of conduct for the South China Sea. If this transpires, then the US ploy will have helped to tone down disputes over claims. However, the cost will be high. China is unlikely to forgive or forget the fact and especially the manner of US interference. If anything, it may have convinced Beijing that the die is cast. It could confirm its worst fears, that the US is stealthily trying to draw ASEAN or some of its members together with Australia, Japan and South Korea into a soft alliance to constrain, if not contain, China. Beijing’s struggle to break out of these constrants, politically and militarily, will set the stage for rivalry and tension in the years ahead. Mark Valencia is a research associate in the National Asia Research Program.