South China Sea Strategies for other nations (Not China)

Equation said:

Spicy stew gives the President gas. Can't have that "gas release" at the wrong moment when meeting with the President of China at a State Dinner coming soon.

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Last week, the U.S. Senate’s Armed Services Committee

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on Washington’s “Maritime Security Strategy in the Asia-Pacific Region.” The committee heard from Admiral Harry Harris, Jr., commander of U.S. Pacific Command, and David Shear, the assistant secretary of defense for Asian and Pacific security affairs. The discussion included a particular focus on the question of U.S. freedom of navigation (FON) patrols within 12 nautical miles of China’s artificial islands – leading to headlines like this, from Associated Press: “

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.”

That headline seems designed to elicit groans from Asia analysts. In fact, media coverage in general of the Senate hearing – and, more broadly, the question of FON patrols in the South China Sea – conflated the issue of challenging sovereignty and asserting freedom of navigation. That misconception comes because the actual point being made by FON patrols hinges on arcane details of international law.

If United States decides to conduct these patrols, it will not be challenging China’s sovereignty claims over the Spratly Islands writ large. The U.S. has repeatedly state that it takes no position on the sovereignty of the disputed features in the South China Sea. Rather, by conducting patrols within 12 nm of some of China’s artificial islands, Washington would be providing a public assertion of the American interpretation of international law (specifically the UN Convention on the Law of the Sea) regarding freedom of navigation. We’ll need a primer on applicable UNCLOS sections to understand what’s really at stake in the case of China’s artificial islands and U.S. FON patrols.

Within a territorial sea, defined by UNCLOS as 12 nautical miles, ships from all states enjoy the right of innocent passage. But ships must meet certain conditions to conduct “innocent passage.” UNCLOS provides a list of activities “considered to be prejudicial to the peace, good order or security of the coastal State” and thus not included in the right of innocent passage – including (most pertinently for U.S. operations in the South China Sea) “any act aimed at collecting information to the prejudice of the defense or security of the coastal State” (

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).

That means states are not guaranteed the right to conduct surveillance within another state’s territorial sea. So the question of whether a certain feature generates a territorial sea is of crucial importance to determining whether the U.S. Navy can send surveillance ships and/or aircraft to conduct surveillance within 12 nautical miles of that feature.

That question is answered by

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, which reads, in full:

1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.

2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. [emphasis added]

Effectively, any feature that is only above water at low tide is a low-tide elevation (LTE) and is not entitled to a territorial sea, unless it itself is part of another feature’s territorial sea (e.g., a state’s coastline or an island). In fact, LTEs are not subject to sovereignty claims at all, unless they themselves are located within an existing territorial sea. Thus under UNCLOS a state claiming an LTE has no rationale for denying even military ships the right to approach within 12 nautical miles.

UNCLOS also specifies that “artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf” (

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). Rather than generating a territorial sea, artificial islands are allowed a “safety zone” of no more than 500 meters – a little over a quarter of a nautical mile.

So now we have a well-established body of international law that directly relates to China’s artificial islands: military vessels are only explicitly banned from conducting surveillance within another state’s 12 nm territorial sea; LTEs generate no territorial sea, nor do artificial islands; therefore, there is no legal reason why the U.S. Navy cannot operated with 12 nm of artificial islands that were formerly LTEs.

This last point is often overlooked as China has

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on seven features (Cuarteron, Fiery Cross, Gaven, Hughes, Johnson, Mischief, and Subi Reefs), some of which qualified for a territorial sea even before China’s reclamation efforts. There is no consensus on the states of the features, but the Philippine South China Sea claim against China in the Permanent Court of Arbitration listed three of the seven features (

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) as LTEs.

U.S. officials

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that the U.S. considers some the features to have been LTEs and others to have a claim to a territorial sea; the FON patrols would only go within 12 nm of those features that were LTEs before China’s reclamation and construction. In other words, the United States is not challenging China’s sovereignty over the Spratly features; it is challenging the status of those features under international law. A patrol within 12 nm of Mischief, Subi, or Gaven Reef would signal that, despite recent construction, Washington considers these to still be LTEs under UNCLOS with no claim to a territorial sea.

That’s the very narrow sense in which the U.S. would be challenging China’s sovereignty by conducting FON patrols. It does not mean Washington is declaring China’s sovereignty claims in the Spratlys as invalid, merely that the United States does not recognize territorial claims originating from LTEs, even when the feature in question has been artificially enlarged so as to be permanently above the high tide line.

The importance of setting that precedent is obvious: if any state could dredge up sand to artificially create its own 12 nm territorial zone, it could have serious repercussions for freedom of navigation, particularly in the South China Sea. According to the

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, there are many other LTEs occupied by China’s rival claimants, including Vietnam (Alison Reef, Central Reef, and Cornwallis South Reef) Malaysia (Ardasier Reef and Dallas Reef), and the Philippines (Irving Reef). If the precedent is set that artificially enlarging LTEs grants them a territorial sea, we may see a construction boom in the already-contentious area.

Keep this all in mind the next time an article suggests that the U.S. plans to challenge China’s sovereignty over the Spratlys through FON patrols. It’s not strictly false, but the truth behind the headline is far more complicated.

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Vietnam's president told The Associated Press on Monday that China's island-building in the disputed South China Sea violates international law and endangers maritime security.

President Truong Tan Sang also urged the U.S., which has expressed mounting concern over China's assertive behavior, to fully lift a ban on lethal weapons sales to Vietnam.

Sang said that would demonstrate to the world that U.S.-Vietnam relations have been fully normalized, 40 years after the end of the Vietnam War.

Sang was speaking in an interview with The AP as world leaders gathered at the

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.

Communist-ruled Vietnam and China have long-standing fraternal ties but tensions have grown over oil exploration in disputed waters, and as China has undertaken massive land reclamation in the Spratly island chain, also claimed by Vietnam.

"The East Sea is indeed a hot spot of the region and the world at this point, and in the last year China has done large-scale reclamation of submerged islands to make them very big islands," Sang said, using the name Hanoi uses for the South China Sea.

"We believe that these acts by China violate international law," he said, citing the U.N. convention of the law of the sea. He added that it also infringes a declaration of conduct reached in 2002 by members of the Association of Southeast Asian Nations.

He said the concerns of Vietnam and other Southeast Asian nations are "obvious and easy to understand because the acts by China seriously affect the maritime safety and security in the East Sea." He underscored the importance of a peaceful environment to realize new goals for sustainable development just agreed at the U.N.

In Washington last week, China's President Xi Jinping said the Chinese have "the right to uphold our own sovereignty" in the South China Sea, where Vietnam, the Philippines, Taiwan, Brunei and Malaysia also have competing claims to tiny islands and reefs. China has reclaimed about 3,000 acres (1,200 hectares)of land in the past year-and-a-half by dredging sand from the ocean bed, and is building airstrips and other facilities that the U.S. is concerned could have military uses.

While Sang talked tough on China, he had warm words for the United States, and looked for further steps to cement stronger ties.

"The moment the United States fully lifts the ban on lethal weapons sales to Vietnam will send a signal to the whole world that the Vietnam-U.S. relations have been fully normalized" and there's no mistrust between the two nations, Sang said.

A visit by President Barack Obama to Vietnam — possibly this fall, when the U.S. leader is due to visit the region — would also consolidate a comprehensive partnership formalized between the former enemies when Sang visited Washington in 2013, he said.

Last October, the U.S. announced it would allow sales, on a case-by-case basis, of lethal equipment to help the maritime security of Vietnam — easing a ban in place since communists took power at the end of the Vietnam War in 1975. But the Obama administration has said that Vietnam needs to improve human rights conditions for the relationship to reach its fullest potential. U.S. lawmakers also feel that Hanoi should clean up its human rights act before getting privileges in the

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trade deal currently under negotiation. Vietnam is one of 12 nations in the agreement which appears close to completion.

Sang expressed willingness to keep discussing human rights with the U.S. He said that a chapter on human rights is now included in Vietnam's constitution, and that implementing legislation would be enacted in the "next few years" so those rights are fully in place "on the ground."

Human rights groups remain critical of Vietnam's record. While conditions have improved sharply on the immediate post-war era of re-education camps, its record on freedom of expression is poor and the government remains intolerant of dissent. According to the U.S.

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, at the end of 2014, Vietnam was holding about 125 political prisoners.

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Blackstone said:

Vietnam's president accused China of breaking international laws by island building, and called for US to fully lift weapons ban on his country. He wasn't specific on what exact laws China broke, and it's not clear how US fully lifting weapons ban would make any difference in its sovereignty disputes with Beijing.

I wonder what objectives nations like Philippines, Vietnam, and Japan have with the 'bad China' PR campaigns. If they're doing it for purely domestic purposes, then at some point, their own people would get the sense their governments are powerless to do much but cry wolf. And if they're doing it to get traction in the US, then they will be sorely disappointed, because the majority of Americans don't care about specs of rocks in the SCS, and have little interests in getting in the middle of sovereignty disputes.

As the saying goes, if at first you fail, fail fail again. So, we could expect the lame stream media to continue stirring the pot and throw out red meat to an increasingly indifferent and glassy-eyed American public. Meanwhile, China's grip in the SCS is even more firm as it relentlessly build its maritime strategic depth.

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Blackstone said:

Vietnam's president accused China of breaking international laws by island building, and called for US to fully lift weapons ban on his country. He wasn't specific on what exact laws China broke, and it's not clear how US fully lifting weapons ban would make any difference in its sovereignty disputes with Beijing.

I wonder what objectives nations like Philippines, Vietnam, and Japan have with the 'bad China' PR campaigns. If they're doing it for purely domestic purposes, then at some point, their own people would get the sense their governments are powerless to do much but cry wolf. And if they're doing it to get traction in the US, then they will be sorely disappointed, because the majority of Americans don't care about specs of rocks in the SCS, and have little interests in getting in the middle of sovereignty disputes.

As the saying goes, if at first you fail, fail fail again. So, we could expect the lame stream media to continue stirring the pot and throw out red meat to an increasingly indifferent and glassy-eyed American public. Meanwhile, China's grip in the SCS is even more firm as it relentlessly build its maritime strategic depth.

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One issue very close to the surface in the discussions this week between the Obama and visiting Chinese President Xi Jinpin is the ongoing disputes over China’s claims in the South China Sea. The resolution of this major diplomatic disagreement has significant ramifications for investors in China as well as globally.

China has taken the position that it has sovereignty over virtually all of the South China Sea despite the fact that these waters include the recognized exclusive economic zones (EEZs) of many countries, including the Philippines, Vietnam, Malaysia and Indonesia. These countries actually border these waters, which are far from China’s borders.

Chinese Claims in the South China Sea Overlap with Many Recognized Maritime Boundaries

Disputes with U.S. ally the Philippines have been most severe. Many of the areas that China is claiming are very close to the Philippines and as a long-standing ally of the U.S. it has been looking to Washington for support.

Until the early 1990s the U.S. had a major military presence in the Philippines at Clark Air Force Base and Subic Bay Naval Base. Nationalist sentiment and questions of sovereignty lead to the Philippines asking the U.S. military to leave in 1991 and 1992.

In 2014 Manila signed a ten-year agreement to allow the U.S. to station troops, weapons and material at bases across the Philippines. This was seen as setting the stage for a U.S. return to Subic Bay and Clark Air Base. The agreement has been tied up by a legal challenge.

Obama has a unique opportunity to threaten to use his ‘trump card’ of Subic Bay/Clark to force the Chinese to reconsider its actions in the region. Putting significant U.S. naval and air force assets at the heart of this region would be a very strong signal to Beijing that Washington takes it commitments to their allies and interests in the region seriously.

How this plays out is important to investors in every market around the world. The Russia/Ukraine crisis as well as the China/Japan dispute over the Diaoyu/Senaku islands caused “flights to safety” as investors moved out of risky positions. In the event that the U.S. takes action to raw a ‘line in the sea’ on this issue I would expect markets tied to the crisis to sell off (China, Philippines, Malaysia and Vietnam) and a general shift to a ‘risk-off’ investment position globally.

If China continues at the pace of activity seen in recent months it will not be long before Manila concedes that having a direct U.S. military presence in the Philippines might be just the hand to play to at least slow down Chinese actions. If that happens–watch your portfolios and be ready for a bumpy ride as the markets figure out whether someone is going to fold or whether the stakes keep going higher.

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Myths about the South China Sea and related U.S.-China strategic interaction have been multiplying in Washington like fruit flies of late. There is the curious notion that China’s recent actions in the South China Sea portend a spasm of aggression spanning East Asia, spilling into the Indian Ocean and then through the Middle East, Africa and beyond. Almost as fanciful is the idea that Beijing is about to erect figurative toll barriers around the South China Sea, only admitting the ships of nations that agree to perform the infamous 磕头[kowtow]. Presumably, naval vessels requesting admittance would require either multiple prostrations or at least some very fat 红包 [red envelopes].

Some delirious neo-liberals may have actually thought that Beijing would go along with, or at least not react negatively to the decision of the International Tribunal on the Law of the Seas regarding

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. Another all-too common analytical blunder has been the belief that

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will cause it to soften its approach toward the South China Sea. Also comical is the now fashionable notion that U.S. aircraft or vessels patrolling ever closer to China’s reclamation projects would finally bring the Dragon to heel. All “Dragon Tamers” of the increasingly similar neo-liberal or neo-conservative stripe may cease reading at this point, but fellow realists are invited to press on to consider five really dangerous misconceptions regarding the evolving South China Sea cauldron.

Myth #1:

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, setting in motion further Chinese “aggression.”

According to Administration critics, this episode was one of the Administration’s most significant blunders, giving Beijing a “green light” to push hard against various maritime claimants such as the Philippines. It is actually true that Chinese strategists have studied this case and attempted to draw sweeping conclusions for Chinese maritime strategy, including the delineation of a so-called “黄岩模式” [

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]. Is this a grave blow to U.S. national security? Or did Beijing succeed in adding another rock to it's not particularly impressive marine geology collection? Even if China can profitably exploit the marine resources in and around this new “prize” – a rather dubious proposition – they most certainly will spend more to protect it than they will gain from drilling next to it. President Eisenhower famously said that he would not take the U.S. to war over the shape of a helmet (during the Berlin Crisis). American leaders must make such grave decisions. It seems likely that Obama faced a somewhat analogous dilemma during the 2012 Scarborough Crisis and perhaps at other junctures as well. And like Eisenhower, Obama appears to have concluded that he should not take his country to war with another superpower over relatively trivial matters, such as fishing practices or offshore drilling rights. That wise decision was a message to all adventure-seekers in the South China Sea – not least those in Manila – that the U.S. has far more urgent matters to concern itself with.

Myth #2: China’s building projects in the Spratly’s amount to new “bases” and are extensive enough to alter the regional balance of power.

Serious military strategists will find this supposition quite preposterous.

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, even by lesser militaries. Much has been made of Beijing’s new opportunity to fly surveillance aircraft, anti-submarine warfare aircraft and even fighter aircraft from the airstrips now being built. Supposedly, China could base small frigates, fast attack craft and even submarines at these new facilities, but that approach still seems far-fetched. Never mind that it would be nearly impossible to store a strategically significant amount of fuel and munitions on these reefs, but such forces would have little and more likely even negative war-fighting value since they would be so exposed to hostile fire. In other words, a squadron of Su-27s flying out of Fiery Cross Reef “base” would most likely be smoking wrecks within hours of the start of any South China Sea conflict. To this author’s reckoning, a facility can be termed a “base” when it has some prospect of playing a useful operational role during armed conflict. By that definition, these facilities are not bases, but rather outposts of a merely symbolic nature.

Myth #3: The U.S. must stand shoulder-to-shoulder with its treaty allies and partners on the issue of the South China Sea.

Despite the good common sense that prevailed in the spring 2012 “crisis” as discussed above, the notion persists that U.S. national interests amount simply to the aggregate of interests of all allies and partners. Thus, as Beijing has often complained, Washington’s eagerness to please and to allay all concerns has created perverse incentives for allies and partners to press for maximalist positions within various disputes with the hope that Uncle Sam will have their backs if push comes to shove. In a risk/reward matrix, some Philippine nationalists could come to the seemingly far-fetched conclusion that it is really worth it for Manila to risk World War III in order to secure drilling rights on Reed Bank. The Philippines would likely suffer enormously in such a conflict, of course, and very few Americans would try to make a similar case. Indeed, the example shows how Philippine and American interests could logically go in quite separate directions. One might even say that Manila enters a zone of serious moral hazard in hoping that Washington would take such risks for the sake of just another oil patch. It turns out the major diplomatic error has been to give The Philippines the wrong-headed idea that the U.S. would actually entertain such grave risks. Alternatively, the alliance could be much strengthened if it remained grounded within the scope of common sense. That is to say that the U.S. defense commitment to the Philippines should be defensive in orientation and cover the main islands, including Palawan, Luzon, etc, but no ill-defined and unexplored “grey zone” claims. Why the U.S. should entertain any conflict, let alone major hostilities, with China over maritime disputes with U.S. “partner” Vietnam is completely mystifying....

Continued on next post...

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Myth #4: The dynamic East Asian economy determines that the South China Sea is a “core” U.S. national security interest.

One of the most common, but silliest ideas floating about on the South China Sea is that the area’s economic dynamism implies that the U.S. must maintain unchallenged military supremacy in these waters. Taken to a bizarre extreme, this logic even claims that the entire global trading system (the “rule-based order”) is under grave threat from Chinese actions in the South China Sea. In short, stand up to China or watch the global economy come crashing down. Good luck finding a credentialed economist or even a Wall Street analyst, who would agree with this assessment. What makes this line of argumentation so specious, of course, is that China has been the major driver for this region’s extraordinary economic dynamism. The argument that maritime trade (and with it the global economy) will crash if China gains additional strategic influence in the South China Sea is, at best, a 19th century anachronism in our collective discourse. At worst, it is simply foolish drivel that makes for fine-sounding political rhetoric. Washington would be better served taking a page from Beijing’s playbook and attempting to turn its own backyard into a dynamic force in the global economy. The U.S.-Cuba rapprochement is a hopeful start towards such a project.

Myth #5: If it comes to a fight in the end, the U,S, will “clean China’s clock.” Among all the myths outlined above, none is quite as dangerous as this one.

If one believes in this highly uncertain notion, then it follows that there are few risks and little need for restraint. One need only parade some hardware about now and then – even daring to come up to within 500 meters of China’s built up outposts – and Beijing will surely stand down, overawed by Washington’s legendary military prowess. There are so many reasons to doubt the veracity of this conventional assessment (

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, a plethora of new classes of advanced supersonic cruise missiles, plentiful strike aircraft, surface combatants, submarines, sea mines, hardened bases, etc.) but the most basic reality of military strategy very simply holds that a “home game” is infinitely simpler than an “away game.” Chinese Navy unofficial spokesman Admiral Yin Zhuo (PLA Navy, ret.) made this point when he said recently: “如果未来中美发生冲突，可能就是在中国家门口打. 不客气的说, 在家门口打仗, 我们谁都不怕.” [

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.] Other supposed advantages for the U.S., for example combat experience, also fade away for the most part when it is realized that counter-insurgency and anti-terrorist operations have little in common (and may indeed be at cross-purposes) with high intensity air-sea operations that would be at the heart of any hypothetical U.S.-China war. This is not defeatism, but rather a clear-eyed understanding that a U.S.-China war is absolutely not a “cake walk” for American forces and really nobody knows for sure how such a conflict would end.

Not surprisingly, there has been little appetite on the campaign trail to talk sensibly about the South China Sea or U.S.-China relations. Don’t expect much from Hillary Clinton in the way of presenting creative diplomatic solutions to the Gordian Knot of the South China Sea, since one of her main legacies as Secretary of State seems to have been a dramatic increase in tensions in the South China Sea and elsewhere along China’s periphery after she focused on the issue in mid-2010. Interestingly, Donald Trump seems to have offered one of the most sensible comments on the issue recently,

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:

Shooting wars appeal less. Asked about China building runways on reclaimed land in the South China Sea, he calls it a hostile move. “However, it is very far away, and we have a lot of problems, OK? And they are already built.”

In other words, he seemed to be saying that these moves are objectionable, but hardly a ‘big deal’ given other pressing issues. Maybe part of Trump’s appeal is his pragmatism and refusal to buy into neo-conservative and neo-liberal orthodoxies.

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is Associate Professor in the

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(CMSI) at the

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in Newport, RI. The opinions expressed in this analysis are his own and do not represent the official assessments of the U.S. Navy or any other agency of the U.S. Government.

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shen said:

It takes real courage for Prof. Goldstein to write this clearheaded piece in the current political climate. Just a couple of weeks ago, an American admiral was publicly called a traitor for suggesting that the US and China can cooperate.

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