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I recently attended a fascinating ASPI forum on developments in the South China Sea.
The forum came against the backdrop of the second round of arbitral tribunal hearings at The Hague on the Philippines’ historic case against China over the South China Sea. Any ruling by the tribunal on whether China’s nine-dash line is legitimate will have implications beyond the Philippines, especially on how other claimant countries deal with Beijing.
We heard a lot from four expert speakers about how the situation has recently deteriorated—caused by China’s extensive building of artificial islands and its more assertive posture—which has produced growing levels of distrust and rivalry between US and China.
We also heard several suggestions on how to deter China’s assertiveness, with discussion focused on the US Freedom of Navigation program—which law of the sea experts point out was poorly executed at the Subi Reef recently.
But apart from a reference to fisheries, we didn’t hear too much on how we might use greater cooperation in the South China Sea in areas like marine scientific research, search and rescue, and marine environmental protection to help defuse tensions.
A few years ago ASPI convened a conference on maritime confidence building measures in the South China Sea. I was a participant at the Sydney meeting. Australian and regional delegates concluded that little progress had been made on cooperation in the South China Sea. That’s despite that fact that, as several conference participants pointed out, cooperation is critical because of the volumes of shipping traffic, pressures on marine resources and environmental damage.
The Sydney meeting generally concluded that lack of trust between major powers and neighbouring countries was a key factor in explaining the lack of progress, along with concerns that cooperation might compromise sovereignty claims. The situation since the ASPI conference has only become worse.
At the same time the geography hasn’t changed; the South China Sea remains a semi-enclosed sea. To quote from the ASPI conference report (PDF), cooperation is a ‘specific and joint responsibility of countries adjacent to an enclosed or semi‑enclosed sea under the regime in UNCLOS Part IX’.
Three positive initiatives have, however, recently emerged that could serve to advance maritime cooperation in the South China Sea.
First, in 2014, China and the US signed a Memorandum of Understanding on Rules of Behaviour for Safety of Air and Maritime Encounters, which may over time cover coast guards.
Second, the ASEAN Foreign Ministers’ Meeting this year supported the establishment of an ASEAN Coast Guard Forum to address civil maritime cooperation.
And third, the US has established a Southeast Asia Maritime Law Enforcement Initiative to provide US$100 million of assistance to the coast guards and marine police of Indonesia, Malaysia, the Philippines and Vietnam to support greater regional cooperation and coordination.
Key regional forums that deal with maritime security include the expanded ASEAN maritime forum (EAMF), the ASEAN Regional Forum inter-sessional meeting on maritime security, and the maritime security expert working group under the ASEAN Defence Ministers Meeting Plus. However, none of those groups to date have really tackled maritime cooperation in the South China Sea.
But the EAMF, which includes all members of the East Asia Summit (EAS), and looks at the full spectrum of maritime issues, has now been given prominence in promoting maritime cooperation.
That’s clear when we examine the statement that came out of the EAS Summit in Kuala Lumpur on 22 November, ‘EAS Statement on Enhancing Regional Maritime Cooperation’ (PDF) that Australia co-sponsored with Indonesia, New Zealand and importantly with both China and the US.
The statement specifically endorses the EAMF as an effective platform to ‘constructively engage in open and substantive dialogue’. It encourages ASEAN to consider elevating the EAMF to include a dedicated Track 1 forum in addition to the 1.5 Track EAMF ‘on the basis of consultation and consensus among EAMF participating countries’.
This important EAS document emphasises blue economy issues: it’s focused on maritime cooperation generally, not harder maritime security cooperation. When it discusses ‘incidents at sea’, for example, it looks at search and rescue incidents.
As the EAS statement on maritime cooperation reminds us, in all the talk about increasing military presence in the region and the need for ‘trip wires’ in the South China Sea, we shouldn’t forget the need to focus on small ‘s’ maritime security, as opposed to harder military and political issues, as a means to reduce regional distrust.
Last week’s revelation that the Pentagon had been briefing Asian allies that US Navy warships would soon conduct freedom of navigation patrols in the South China Sea has ramped up tensions in the world’s most hotly contested body of water. Expected to take place within the next few days, the patrols would see US naval ships come within 12 nautical miles of at least one of China’s controversial features in the South China Sea for the first time since 2012.
China has responded to the news about the impending patrols by stating that it will ‘not permit any country to infringe on China’s territorial waters and airspace in the Spratly Islands in the name of ‘protecting freedom of navigation and overflight.’ However on Tuesday, US Secretary of Defense, Ash Carter, reinforced the US’s more muscular stance in the region, declaring that the US ‘will fly, sail, and operate wherever international law allows, as we do around the world, and the South China Sea is not and will not be an exception’.
Indeed, the South China Sea shouldn’t be an exception. Freedom of navigation patrols in the South China Sea are perfectly legal under the United Nations Convention on the Law of the Sea (UNCLOS). They‘re seen by America and some of its partners as increasingly necessary to send a strong signal to Beijing that the US—and by extension the rest of the region—won’t accept China’s unilateral claims to the Sea, its belligerent enforcement of its claims, nor its militarisation of the islands.
But US freedom of navigation patrols accompanied by tougher and tougher rhetoric puts Beijing between a rock and hard place. If the US does conduct the patrols, Beijing will be forced to chart a rocky course between a measured response that doesn’t escalate dangerous tensions between the two powers, and a response that doesn’t appear weak to China’s increasingly nationalistic populace.
The influence of popular nationalism on the Chinese leadership should certainly make the US pause to examine the consequences of its ramped-up rhetoric surrounding the South China Sea. The CCP has relied on the twin pillars of economic growth and nationalism to consolidate its domestic legitimacy since 1989, fuelled by the careful construction of a widespread patriotic education campaign. The CCP has actively promoted a nationalist discourse that juxtaposes China’s long and proud history of civilisation with its shameful experiences at the hands of colonial powers during the Century of Humiliation. On top of this, the CCP strongly emphasises the Party’s role in China’s economic successes and national rejuvenation over the last 30 years, successfully positioning itself as the upholder of Chinese territorial integrity, defender of Chinese sovereignty and champion of China’s core interests.
With Chinese citizens increasingly nationalistic over the South China Sea, any ‘tough’ US action in the region is likely to cause a strong backlash in China. In the face of slowing economic growth, or China’s ‘new normal’, the CCP can’t afford to be seen as weak in the face of any perceived US disrespect to its territorial sovereignty. This may lead the CCP to adopt a hard-line response in an effort to placate outrage back home. This wouldn’t be the first time the Chinese leadership have altered their original measured responses to similar incidents in an effort to soothe domestic sentiments. The 2001 US EP-3 spy plane incident, the 2010 Senkaku/Diaoyu raw earth minerals incident and the escalated tensions in 2012 around the Senkaku/Diaoyu islands all spring to mind. Despite the ongoing game of chicken in the South China Sea, an escalated response to the US patrols certainly isn’t in China’s strategic interests, even if it shores up legitimacy at home.
Nicholas Kristof’s old adage that nationalism is a ‘particularly interesting force in China given its potential not just for conferring legitimacy on the government but also for taking it away’ is pertinent.
It’s been argued elsewhere that assertive US efforts won’t solve the South China Sea challenge. That’s right—all provocative language from the US will do is fuel domestic tensions in China that the CCP will be unable to ignore. This isn’t to say that the US should halt its proposed freedom of navigation exercises. The US should by all means conduct the patrols, but should wind back the language and stick to highlighting the patrols as ‘routine’ and in-step with international maritime law. The US should also restrict their patrols to features that were indisputably only submerged bodies before China’s massive land reclamation activities, such as the Mischief Reef, to avoid further escalating Chinese tensions around territorial sovereignty.
These steps would go a long way in taking some, but certainly not all, of the heat out of South China Sea tensions and avoid backing Beijing in to a situation that’s in neither Beijing’s nor Washington’s interests.
Publications often view the South China Sea as a source of constant security tension whereas analysis of scientific cooperation in the region, on the other hand, is rare, thinly spread and short. However, scientific cooperation in maritime matters does exist; ‘collective research and knowledge’ is even considered by neighboring nations as a means of gathering together—a functional bridge—indispensable in de-politicalising reoccurring tensions. Disputes between parties continue to poison bilateral relations and negotiations on a Code of Conduct are tested by significant political questions while scientific programs link an extensive network of scientists and bureaucrats covering complex maritime questions, resource management and sharing a common interest for fragile ecological balances.
Scientific programs obviously serve the interests of both China and the Southeast Asian countries: areas of cooperation are numerous and the easiest ground to establish regional cooperation regimes. In this sense, collective scientific work or the adoption of functional standards could contribute towards defusing threatening attitudes.
The numerous projects initiated demand time (they run over several years) and a substantial financial investment. They can only start once all parties (including those currently in conflict) strike an agreement, to avoid risk to their smooth running. Chinese proposals are non-stop, at every level and in every domain. They cover a very wide scope of research from tectonics, currentology, sedimentology, marine geology to prospecting and exploration programs or fight against pollution and environmental warming.
Yet, as my ASPI Strategic Insight paper demonstrates, scientific cooperation endorses the reality of the relationship, which is that of ‘unequal interdependence’ or asymmetry. No effort equals in size nor in quality the one sustained by the Chinese. China is the main initiator, orchestrator and financial sponsor of regional scientific cooperation programs. As a country where the Science & Technology development model forms part of a more global strategy to validate its status as a powerful nation, China has actively supported research through the funding of institutes, universities’ programs, infrastructure and specialists education. President Xi Jinping is involved in the elaboration and supervision of different programs such as the state program for ocean development—2006 to 2020—or the five-year improvement plan for oceanic development. Scientific research is clearly viewed as an instrument of power more than a vector of cooperation (nevertheless a useful ‘façade’); in the domain of scientific cooperation, as in others, China plays on the weaknesses of its partners.
China-led scientific cooperation programs serve three aims: first, to control the data for the area to enhance all the options; second, to use research as a demonstration of power—the submarine Jialong is one such example; or third, to reaffirm Chinese sovereignty through the bias of holding on to selected scientific data. Scientific cooperation becomes a strategic asset and a tool that fits into the overall strategy for non-military coercion.
The evidence shows that China uses its rapidly developing scientific and military prowess in a synchronous timing to dissuade rivals, give credibility to its arguments and secure its regional space and supply routes. After 20 years of research programs in the South China Sea, the space is effectively starting to become well controlled. But this control isn’t really the product of scientific cooperation. It’s rather the result of China leading research programs and banging the drum. It’s therefore reasonable to question the link between the understanding of the maritime space that this research has enabled and its use for gaining power. Besides, scientific cooperation hasn’t reduced mistrust and facilitated the agreement on a Code of Conduct.
But China’s strategy of ambiguity is best illustrated by its reclamation activities. Not only has the construction of artificial islands been made possible under the guise of scientific cooperation (the Chinese started discretely with Fiery Cross, from 1988, when China participated in the construction of a marine observation station for UNESCO) but the dramatic bio-physical and geo-physical impact of such transformation, which extends well beyond the area, may be the most convincing argument that Beijing isn’t working for the ‘common good’ but looking only after its own ambitions.
I’m in Taiwan this week as a guest of the Chinese Council of Advanced Policy Studies, speaking at the ROC (Taiwan)–US–Japan Trilateral Security Dialogue, a meeting held annually since 2011. It’s a similar idea to the Quadrilateral Plus Dialogue, in that it’s a group of democratic states with a stake in Asia–Pacific security getting together to examine where their interests overlap and how we might cooperate on security matters.
Also like the Quad Plus, there’s an obvious ‘elephant in the room’ in the form of the PRC and the way in which it’s driving regional thinking on security issues. This post is extracted from my conference paper (PDF), written for the session on maritime security.
Maritime security in the Asia–Pacific region has been largely underwritten by the capability of the United States Navy for the past 70 years. That reflects the circumstances at the end of WWII, when all the Asian powers were weakened by years of war, and in Japan’s case by disastrous defeat. It was a regional manifestation of a global rewriting of the world order which saw the United States being the dominant power everywhere but Eastern Europe. The global economic system defined at Bretton Woods reflected the unrivalled financial strength of the post-war United States, and the global trading system became increasingly liberalised. The net result was the creation of a system in which many nations prospered—not least of which those in Asia over the past quarter century. The Soviet Union, for most of that period the only serious geopolitical rival to American power, finally collapsed when it couldn’t match the economic growth that was powering its rivals.
Today we’re seeing the metastable post-WWII order coming under serious pressure. Ironically, the main challenge is coming from China, perhaps the biggest beneficiary of the United States led order. The US and other countries, including Australia, helped the PRC enter the world economy and set it on the path to becoming the world’s largest economy. It was always the hope—and probably expectation—that the PRC would ‘normalise’ into the world community and become a partner in the order from which it had benefitted so much. I think it’s fair to say that most of us are disappointed, if not outright alarmed, at the actual trajectory the PRC seems to have chosen for its rise to the top of the list of world powers.
China is throwing out significant challenges in all aspects of national power. Its economic clout is considerable, its military power is growing rapidly, its espionage activities are very successful and it isn’t afraid to use any or all of those to pursue its own interests. Of course all countries do that to some extent, and we shouldn’t be surprised when China puts its own interests first. But what’s different, I think, is that China appears to want to be the most successful player in a game in which it defines its own rules, rather than becoming a powerhouse in the order that the rest of us have been happy to operate within.
American naval power has been mostly uncontested for decades, and the Soviet Union was much less strong at sea than on the land or in the air, but it’s now coming under pressure in the Western Pacific due to the growing ability of the PRC to field anti-access and area denial capabilities. I don’t have to explain here in Taiwan the difference in PLA capability relative to the US today compared to 20 years ago during the third Strait crisis.
That has led some commentators to argue that the ability of the US to underwrite the security of its partners and allies in this part of the world has declined. I’m not so sure of that. It is certainly true that there is much less qualitative difference between PRC and US capability today, and due to proximity, the PRC probably has a quantitative advantage in most circumstances. But it is far from being able to overwhelm the United States, and any significant armed clash would still be disastrously costly (increasingly for both sides). The forces of the US still represent a substantial deterrent to overt military adventurism, and the question ultimately boils down to one of American resolve.
The challenge for US allies and partners is to keep America engaged. In the past we’ve all tended to ‘free ride’ on American power. Japan is spending under 1% of GDP on defence and Australia 1.8%, while the US spends more than 4%. When there was no serious challenge to the USN in our region that was a low risk strategy. But today we have to collectively think harder about the costs and benefits of alliance and partnership contributions. If the US sees its good will towards its friends in the region being taken advantage of, it will have less incentive to continue to commit substantial resources, especially as the environment becomes ever more challenging.
Australia is moving to spend more on defence, and to align its forces with those of the US, so placing a bet that a stronger contribution to the American alliance framework will help underpin the current security structure. As we see in the South China Sea, that strategy is vulnerable to ‘chipping away’ at the periphery, which the PRC is currently doing, but it probably still represents the best alternative in the big picture of regional security.
In a recent oped (PDF) in The Australian I drew attention to China’s distant water fishing fleet; it’s now the world’s largest and is heavily subsidised. China’s rise as a fishing power is linked to its geopolitical aspirations (PDF).
The Chinese Bureau of Fisheries in the Ministry of Agriculture has a distant water fishing subdivision (PDF). China has extended its number of fisheries access agreements with coastal states.
More than half the catch is transported back to China, with high-value species sold abroad. China also plans to develop non-traditional fisheries such as Antarctic krill.
A third of China’s distant water fleet is composed of a large state-owned enterprise, the Chinese National Fisheries Corporation, and its subsidiaries. The rest of the industry is composed of regional middle-sized companies and small coastal companies.
China’s distant water fishing operations are rapidly expanding, and its fleets are rather poorly regulated. China uses its fishing fleets to create a strategic presence in both the East and South China Seas; this also helps China’s navy by developing knowledge of local conditions.
But China’s fishing fleet expansion offers opportunities for other states to cooperate with China on fishery matters. Nowhere is this clearer than in the Western and Central Pacific Ocean, which produce 60% of the world tuna stocks. The latest fisheries stock assessment shows that the sustainability of some of the tuna stocks in the Pacific region are at risk.
China has aggressively increased vessel numbers in the region and those vessels remain largely based on the high seas. But it doesn’t have a great record of providing data that properly identifies species and attributes catch to the correct country of origin. (Japan, by contrast, continues to set a positive example to other distant water fishing nations licensed to operate in Pacific waters when it comes to regional compliance standards).
Australia can help China develop good data collection systems, especially electronic reporting systems.
Fisheries are one of the most significant renewable resources that Indian Ocean countries possess to secure food supplies, maintain livelihoods and assist economic growth. Indian Ocean fisheries produce around a third of the world‘s tuna and include the valuable southern bluefin tuna (SBT) fishery.
In the Indian Ocean, China has been rapidly expanding its tuna fishing, with poor reporting of catches. But regional fishing bodies in the Indian Ocean have only policy recommendation functions, meaning it’s up to the individual states to implement measures to manage fisheries effectively.
As an Indian Ocean littoral state we’ve got a direct interest in the sustainability of the region’s fisheries. The Indian Ocean contains the spawning area for southern bluefin tuna; our most valuable tuna fisheries have current exports of $150 million per annum.
China remains outside the SBT Commission and this presents a problem: China has a large number of boats fishing in areas where southern Bluefin tuna is caught. Studies of China’s markets have identified southern bluefin tuna present in this market. Australia should encourage China to accede to the SBT Convention and join the relevant fisheries management organisation—the Secretariat is in Canberra—as a full member.
More generally, we should encourage exchanges between Chinese fisheries’ scientists and our fisheries’ scientists and managers. We should include fisheries’ issues on the agenda of our annual high-level bilateral strategic dialogue, and use this to strengthen links with China in the Indo-Pacific.
China’s dredging activities in the South China Sea are significantly disrupting the region’s marine environment. As James Bortley reminds us, ‘the Spratly Islands’ immense biodiversity cannot be overlooked’.
In April the Philippine Department of Foreign Affairs pointed out that China’s reclamation activities in the South China Sea were causing ‘irreversible and widespread damage to the biodiversity and ecological balance‘.
The statement noted that China’s activities have so far caused destruction of ‘over 300 hectares of coral reef systems, amounting to an annual economic loss of US$100 million’. The damage extends beyond the artificial islands into the waters of surrounding littoral states.
China was criticised for ‘tolerating harmful practices and harvesting of endangered species’ that are protected under the Convention on Biological Diversity and the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
In pursuing its reclamation activities China should look to the UN Convention on the Law of the Sea(UNCLOS), to which it’s a party. Article 206 of UNCLOS states the following:
When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.[Article 205 refers to an obligation to publish reports.]
There’s also a requirement under customary international law to undertake an environmental impact assessment—although the exact scope and content isn’t clear—where there’s a risk that the proposed activity may have a significant adverse impact in a transboundary context.
It’s surprising we haven’t seen environmental groups, mounting the kind of protests in the South China Sea that we saw a few years ago against Arctic oil exploration.
In September 2013, Greenpeace International used the Arctic Sunrise to stage a protest directed against an offshore fixed platform in the Barents Sea. The Russian coast guard intervened and detained two activists who’d climbed the platform.
In the Russian Federation’s exclusive economic zone, authorities of the Russian Federation took over control and detained the Arctic Sunrise, flying the Dutch flag, and took it to the port of Murmansk.
The crew of 30 persons were charged with the crime of piracy under Russian law and put in pre-trial detention.
In October that year, the Netherlands submitted the dispute to the arbitral procedure provided for in UNCLOS. In spite of the non-participation of the Russian Federation, the International Tribunal on the Law of the Sea prescribed that the Russian Federation was to immediately release ship and crew upon the posting by the Netherlands of a financial security.
In December 2013, the Russian Federation granted amnesty to the ‘Arctic 30’ and they were all able to leave the country.
One wonders about China’s reaction should any environmental NGO’s send protest ships as part of a campaign against reclamation activities, and how Beijing would view any subsequent legal action under UNCLOS if protestors were arrested.
China may well find it politically awkward to respond to non-state environmental protest ships, as opposed to grey hulled vessels.
At this weekend’s Shangri-La Dialogue Admiral Sun Jianguo, the People’s Liberation Army’s deputy chief of general staff, stated that apart from ‘meeting the necessary defense needs’, China was carrying out construction on some islands and reefs in the South China Sea to better perform China’s international responsibilities and obligations regarding—among other purposes—environmental protection.
We should therefore be taking this issue up directly with China, asking them whether it’s conducted any environmental impact assessments for their reclamation work to date, and if so what their findings show. This may at least put a pause on the frenetic reclamation activities.
In raising this point with China we might point out that when it comes to the Great Barrier Reef we prohibit dredging for the development of new ports or the expansion of existing ports, outside the long-established port areas of the region.
Along with the other legitimate strategic concerns that we have in the South China Sea, Australian diplomats and military leaders should be highlighting the environmental impacts of China’s reclamation activities in the area.
The failings of the counter-strategies, raised in William Choong’s provocative piece on China’s successful South China Sea strategy, have been evident for quite some time but have been glossed over. The conventional approach to addressing this long-running maritime dispute is generally seen as a careful mix of balancing and negotiation, with balancing sometimes seen as a prerequisite for negotiations. William’s post highlights that while this approach may appear sensible, it isn’t working. In this, several aspects related to both strategy and China’s stance should be discussed.
First, a feature of strategy often overlooked is that it involves interaction between a range of intelligent and adaptive players. As Edward Luttwak discusses, strategy is paradoxical in that the same response from players doesn’t usually work a second time because the others have learnt from their experiences. Strategy involves interdependent relationships where each party continuously modifies their position, intent and actions, based on the perceptions and actions of the other participants. Game theorist Thomas Schelling (PDF) wrote that these interactions ‘are essentially bargaining situations…in which the ability of one participant to gain his ends is dependent…on the choices or decisions the other participant will make.’ The idea of strategy as an interactive social activity has been arguably neglected in the South China Sea imbroglio. Many policymakers have learnt their trade when attending overseas universities including in the US, UK and Australia. It’s not surprising that they crafted a strategy that carefully countered the conventional, traditional responses taught and espoused elsewhere.
Second, to be effective, a strategy must influence others in some meaningful way. In the current conventional approach there is a tendency to equate strategy with simply balancing ends and means. There is a strong implicit assumption that ‘balancing’ in the sense of changing the relative military power between nations will mysteriously lead to a change in China’s behaviour. But strategy is all about how the means will be used to achieve the desired ends. Strategy gives, as the academics say, a causal path. Viewing strategy in this way highlights two factors: that influencing another’s behaviour means finding something that they are sufficiently concerned about and that the proposed actions impacting this area of concern must be plausible. Threatening military action for example may not be credible if the matter is only a secondary, marginal issue. In the South China Sea case, no one has yet determined a course of action that China is either sufficiently bothered by or finds credible.
Third, a major reason that current responses have proved ineffective is that they’re unable to make meaningful linkages between different policy areas whereas China’s strategy is particularly successful at this aspect. The various responses by nations to Chinese demands are deliberately designed to avoid mixing island snatching concerns with other aspects of their dealings with China. For most nations, the South China Sea concerns are strictly quarantined from other parts of their relationships with China. The Chinese strategy is the mirror image. Linkages are played openly and brazenly. If you want to be part of the Chinse economic dream then you need to be careful what you say and do about the South China Sea issue. It is easy to see what happens if you don’t. The Philippines took their worries to the international court against Chinese advice and, as such, have paid an economic price.
What is the upshot of this clash of strategies? In short, if nothing changes, nothing changes. China is well on track to own the claimed nine-dashed line territory. It’s been careful to say that when this happens, it’ll allow freedom of navigation in China’s new territorial zone. Despite this, there have been some recent conditions appearing that indicate that the rules may not be as such for naval vessels. Closing the South China Sea would potentially geographically split ASEAN asunder. Vietnam would be the worst affected; becoming an almost land-locked nation with limited access to the sea. With ASEAN’s potential to develop into a global manufacturing hub, this could concern more than just the regional grouping.
We should also recognise that many in China feel strongly that taking the nine-dashed line territory is their right. In the early 1990s, shaken by the Tiananmen Square experience, the Chinese Communist Party promoted a nationalist view of history and shaped the national education system accordingly. Today many have internalised this history that sees China having suffered a century of humiliation inflicted by outsiders and view the South China Sea dispute through this lens. How claiming territory from the Philippines or Vietnam addresses this appears somewhat inexplicable, but great powers are often accused of cognitive dissonance—and some argue the US is also suffering from this.
To return to where we started, William’s post nicely outlined the success of China’s strategy. Can other nations’ respond in a meaningful way with their own strategies? Given recent troubles in devising a successful strategy for the conflicts in Iraq and Afghanistan, the prognosis may not be good.
The idea that the US may send military aircraft and ships to assert freedom of navigation around Chinese claimed islands in the South China Sea is seriously bad. It’s bad because it would involve an unreasonably assertive interpretation of the international law of the sea, and because it shows such little regard for the impact of such action on regional stability.
There are three main implications of the US proposal that concern the law of the sea. The first is the status of China’s claims to the disputed islands. A recent authoritative report from the Center for Naval Analyses in Washington concluded that while Vietnam may have a better claim to both the Spratlys and the Paracels, ‘[a]t the same time, U.S. policymakers cannot lose sight of the fact that China’s claims may be superior’, and that ‘[t]he absence of an unambiguous legal case in any of these disputes reinforces the wisdom of the U.S. policy of not taking a position regarding which country’s sovereignty claim is superior.’ The action now being contemplated can only be seen as an indication that in fact the US has taken a position on the sovereignty claims.
The second issue is the oft-stated line from Washington that China threatens the freedom of navigation in the South China Sea. But what freedoms of navigation are being threatened? China has always said that with freedoms of navigation and overflight, it only disputes the right of the US to conduct military activities, particularly certain types of intelligence collection and military data gathering (so-called ‘military surveys’) in its exclusive economic zone (EEZ). China’s disputation of the right of the US to undertake these activities isn’t without merit, particularly when the military surveys constitute marine scientific research which is under the jurisdiction of the coastal State in its EEZ. Also, it’s significant that several other regional countries, India, Malaysia and Thailand, share China’s position on military activities in the EEZ.
Washington then aggravates the situation by referring to the waters of the South China Sea as ‘international waters’, ignoring the reality that these waters are actually the EEZs of the bordering countries, including China. It also ignores the fact that the high seas freedoms of navigation and overflight available to other countries in these waters shall be exercised with what UNCLOS calls ‘due regard’ to the rights and duties of the relevant coastal State. The freedoms of navigation being claimed by the US in the South China Sea aren’t absolute and have to be exercised with ‘due regard’ to the rights of coastal States. For the US now to be claiming them appears as though it’s ignoring the sui generis nature of the EEZ established by UNCLOS.
The last law of the sea issue arises from reports that the options being considered in Washington include sending aircraft and ships within 12 nautical miles of the reefs and islands occupied by China. This would be an exercise of the right of innocent passage available through the territorial sea. Even though the features may not be full ‘islands’ under UNCLOS, they have a territorial sea. Sending ships and aircraft into such waters specifically for demonstrating a right wouldn’t be a legitimate exercise of innocent passage. UNCLOS makes clear that innocent passage should be ‘continuous and expeditious’, and shouldn’t involve ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.’
For all these reasons, the action contemplated by the US looks like a dangerously unilateral assertion of rights by Washington. What’s even more worrying is that the US, as a non-party to UNCLOS, may be ignoring some of the convention’s carefully balanced outcomes between the rights of coastal States and those of major maritime powers.
In even contemplating such an assertion of rights in the South China Sea, it appears the US has given little consideration to the impact on regional stability. Provoking China in such an aggressive and unnecessary manner can only make the current situation worse. One wonders whether the US knows what it’s doing in the South China Sea. Is it propping up its treaty partner, the Philippines, or is it asserting its own interests vis-à-vis those of China? Does it know its own limitations when it comes to following through on it its actions? Is it thinking of the consequences? Does it have any idea of an endgame in the South China Sea? These are all vexed questions the answers to which are far from clear.
What does all this mean for Australia? Basically, it means we should keep well clear of what the US is contemplating, including joining Washington in these protests against China.
We woke up to media news this morning that US B-1 strategic bombers would be ‘coming to Australia to deter Beijing’s South China Sea ambitions’. This referred to a statement made by US Defence Department Assistant Secretary for Asian and Pacific Security, David Shear, during a testimony before the US Senate Foreign Relations Committee on Wednesday. As part of his answer as to what the government was doing in response to China’s assertive behaviour in the South China Sea, Shear also stated that the US ‘will be placing additional Air Force assets in Australia as well’, including B-1 bombers and surveillance aircraft. However, a statement by a spokesperson for Defence Minister Kevin Andrews said that the ‘US Government has contacted us to advise that the official misspoke.’ Thus, the US Embassy in Canberra is likely to correct Shear’s statement.
There is indeed no reason to doubt that Shear simply confused the B-1 bomber with the B-52 bombers which have already rotated (as opposed to being ‘based’ there) through our air bases in the North, as part of the US ‘strategic rebalance’ and the US-Australia force posture initiatives agreed upon in 2011 to make US forward military presence in Asia more flexible and sustainable. His full answer to the question merely lists US force posture activities in the broader region that the US has already announced or implemented. This includes for instance the rotational deployment of up to four Littoral Combat Ships (LCSs) by 2018 through Singapore. It also would have been counterproductive for the US government to make a unilateral announcement without first having cleared the deployment with the Australian side. Finally, it’s difficult to see what the rotational deployment of a strategic bomber would do to deter China’s current maritime activities in the South China Sea, particular its land reclamation projects in disputed areas.
For all these reasons, the big news is ‘much ado about nothing’, triggered by Shear’s confusion between the two types of strategic bombers in the US arsenal. The real news is that the issue over China’s behaviour in the South China Sea is heating up. US Defense Secretary Ashton Carter is reportedly considering sending US warships and aircraft to operate within 12 miles or less of the new islands China is building in the South China Sea. Early this week, the PLA frigate Yancheng also closely trailed the USS Forth Worth (LCS) operating in the Spratly Islands. China’s uncompromising behaviour to change the territorial status quo in the South China Sea increasingly puts pressure on its neighbours and other regional countries, including Australia, to formulate a response that practically demonstrates shared interests in unfettered access to the high seas.
Happy International Women’s Day from The Strategist team! The Center for New American Security last week hosted a conference on ‘Women and Leadership in International Security’ (recap here), where USAF Secretary Deborah James announced a push to recruit, retain and promote more women. The US Army has taken a similar initiative. Closer to home, we recommend The Saturday Paper’s December feature on Army Chief David Morrison, in which he outlined his vision to push forward gender equality in the Australian Army. His fundamental understanding of the equality project is worth quoting at length:
The reason I’m happy to say it is that I think there is a gender imbalance in our society. I think it holds us back. I think women are denied opportunities that are accorded to men as the birthright of their sex… What’s wrong with being a feminist? What’s wrong with saying, ‘If we want to go ahead as a society, if we want to realise talent across the board, we should be redressing that imbalance’?
Benjamin Netanyahu was stateside this week talking Iran and nukes. Analysis came from all quarters: Politico said it was all about votes as elections loom in Israel; Graeme Allison thought we’re asking the wrong question when it came to a nuclear deal; for Paul R. Pillar, it’s a case of ‘the pot calling the kettle black and in this case the pot is much blacker than the kettle’; and The Atlantic’s James Fallows took on Bibi’s 1938 analogy and mined the logic of his speech to Congress. Read more