August 1, 2016
The South China Sea remains politically roiled. It has been almost a month since the UN Tribunal’s announcement. Chinese rhetoric attacks both court and verdict, military demonstrations continue and ASEAN’s foreign ministersissued a decidedly equivocal statement following their meeting. Secretary of State John Kerry’s request for a reference to the decision of the UN’s Permanent Court of Arbitration failed. China’s diplomatic efforts to moot the verdict, and by extension moot the UN Convention on the Law of the Sea (UNCLOS), achieved an early success. This dispute now enters a new—and not especially encouraging—phase.
China’s nationalist ambitions mandate the recovery of lost territory, specifically including islands, rocks and low-tide elevations deemed—by China—to be Chinese from ancient times. The July 12 judgment by the UN Tribunal was a stunning rebuke to this goal.
All nations on the East and South China Sea littoral and the United States are directly affected. But the stakes of the affected nations vary widely, as do capabilities and vulnerabilities. Standing alone there is little hope that the nations of the region can come to an acceptable, viable and enduring solution. The gaps among various national interests, stakes and capabilities must somehow be bridged.
The United States seeks to fly, sail and operate our forces wherever international law allows, and peaceful settlement of disputes. Japan is tied to the United States by virtue of our strong alliance, a geography that defines the East China Sea, current issues there, Chinese air and sea territorial intrusions and China’s continued vilification.
Directly opposed to this is China’s often stated “indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and . . . sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.” This is now part of their nationalistic narrative demanding reversal of past violations of Chinese sovereignty.
Smaller nations along the South China Sea littoral, members of the Association of Southeast Asian Nations, are vitally concerned with free and secure access to traditional fishing areas in their territorial waters and exclusive economic zones. For most, fish is the major source of protein for growing populations. The smaller nations fear losing their major source of food. Potential oil and gas reserves, although unproven, add even more contention. Asia recalls well that resource competition leads to conflict.
An effective international strategy to protect free and secure access for all requires some unifying principle or goal capable of gaining support from the ASEAN nations, others along the East and South China Sea littoral, the United States, Japan, international organizations and public opinion. Prevention of a catastrophic collapse of the East and South China Sea fisheries may be part of such a unifying principle. An effective strategy, carefully and skillfully coordinated and executed, can ensure that the recent court decisions become part of a trend. We must make it part of a “line” and not a discrete event, a “dot,” and thus quickly forgotten.
A Memorable July
July was a remarkable month. The court’s judgment was not the only disappointment for China. The Republic of Korea (ROK) agreed to the deployment of U.S. Theater High-Altitude Area Defense capability despitevigorous objections from China and North Korea. The ROK took this action in response to the most recent North Korean nuclear and missile tests. The ROK also closed the Kaesong Industrial Complex, one of the few and certainly the most significant instruments of cooperation between north and south. In response China threatened economic retaliation. In Korea, President Park promised government support to any Korean business damaged by Chinese punitive economic actions.
On July 12, the UN’s Permanent Court of Arbitration (PCA) announced its unanimous decision in the case filed by The Philippines over two years ago. Included in the decision:
• The Nine Dash Line was rejected as a basis for South China Sea claims
• The court rejected the vast majority of Chinese claims and real-world behavior in the South China Sea
• China was found in violation of the rights of Philippine fishermen
• China was found to have “…caused devastating and long-lasting damage to the marine environment”. This included the mining of coral that experts deem will take centuries to recover, if ever.
• China was cited for providing armed protection for vessels engaged in illegal harvesting of marine life
The UN decision may provide a foundation for settlement of disputes and the development of South and East China Sea resources—fossil fuels and fish—or it may become just a step on the way to continued coercion, escalation and conflict. Most likely is continued struggle, at a higher level. Japan has aptlytermed this “Grey Zone Conflict,” a competition involving military and naval forces, civilians, maritime auxiliary forces, law enforcement, coercive diplomacy and information.
Strategic Geography
China already has de facto control over the South China Sea. Proximity brings many advantages. China’s extensive coastline, washed by both the East and the South China Seas, offers numerous ports and airfields supporting direct and immediate access of Chinese military, maritime auxiliary forces and fishing vessels to the seas. China’s massive investment in rockets and missiles distributed throughout their massive geographic sanctuary signals an intent to affect sea control and impose area denial from the land. Their pursuit of maneuvering ballistic missile warheads to attack large moving targets is another indicator of intentions.
China’s vast fishing fleets, increasingly under state sponsorship and control, are always close to their support structure. These vast fishing fleets, in cooperation with Chinese Coast Guard and Maritime Auxiliary resources threaten to shoulder Vietnamese, Philippine and other nation’s fishermen out of their fishing areas.
China’s South China Sea land building efforts demonstrate China’s ability and will to act as they wish in the South China Sea. Their new port and airfield outposts come at the cost of the destruction of vast coral reefs, the essential nursery of marine life, with as-yet uncalculated cost to sustainability of South China Sea and Pacific marine life. These new features testify to China’s ability to do what they please, their disregard for the welfare of others and their ability to exercise ever greater control. Support for military sea and air forces, maritime auxiliary and fishing fleets has now been extended well into the South China Sea and into the territorial seas of the other littoral states.
China’s traditional fishing grounds are severely depleted or even collapsed. Fisheries in the South and East China Seas are under increasing pressure. Fishermen range far from their nearby seas in search of catch. In 2013 and 2014 encounters in Korean waters between Chinese fishermen and Korean Coast Guard forces resulted in the death of a Korean Guardsman and a Chinese fisherman in separate incidents. Without some respect for sustainable fishing practices we will see more deadly competition and ever more pressure on already damaged fish populations
Experts predict major fisheries collapse in the area, leading to mass starvation. Professor John McManus of the National Center for Coral Reef Research at the University of Miami calls for an international protected zone similar to Antarctica. In his words, without this or some similar arrangement, “we are headed toward a major, major fisheries collapse . . . that will lead to mass starvation.”
China moved much earlier to counter any adverse PCA verdict by creating and asserting their version of international law through the establishment of Chinese jurisdictions complete with local courts with claims that international law authority over vast areas of the South China Sea. If this gambit succeeds, UNCLOS will no longer have any authority in the South China Sea because it is no longer “sea” as understood in international law—it will be declared Chinese territory with China enforcing their version what they will call international law.
China’s Maritime Militia, managed by PLA military commands and funded by local and provincial governments, is successful and growing, as are armed Chinese fishermen. It is the world’s largest such organization. It was employed in the 2009 Impeccable incident, at Scarborough Shoal in 2012, and in support of exploration drilling in Vietnamese waters 2014. It has a publicly declared presence on new artificial features in South China Sea.
Strategic Information Challenges
China seized control of the dominating narrative, at least where it counts—with their own population and those of their South China Sea neighbors. Repeated assertions of undisputed historical sovereignty, officially in communications with the UN and publicly in hyper-nationalistic media, raise the stakes considerably. The United States is consistently portrayed as the threat to regional peace and stability and as a violator of Chinese sovereignty. The United States is charged with “containment.” Challenges to ships and airplanes are becoming more aggressive. Surveillance missions, conducted lawfully from international waters and airspace now endure unprofessional “close aboard” intercepts and acrobatics. PLA Navy and Air Force units in the vicinity are gaining strength over time.
The Chinese narrative may now be driving the situation instead of describing it. Today’s situation in the South China Sea is increasingly identified with the Chinese Communist Party’s (CCP) mission to recover Chinese territory lost to the west—and to Japan—during the “Century of Humiliation” from the mid-nineteenth century Opium Wars to the CCP’s victory over the Nationalists in 1949. Victory over Nationalist, Japanese and Western forces coupled with economic growth since the rise of Deng Xiaoping largely form the justification of continued CCP rule. Given today’s economic challenges in China, including increasing violent unrest, the recovery of lost territory assumes even greater importance.
In 2009, the Chinese declared: “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.” Since then, this claim has been repeated often and at all levels. In a November 2015 speech to the Singapore National University Xi Jinping himself stated “The South China Sea islands are China's territory since the ancient times.”
It is no surprise that “sovereignty” is a prominent part of China’s response to the tribunal verdict. Applying the term “historical sovereignty” to almost the entire South China Sea embeds this issue in the Chinese Communist Party’s mission to recover territory lost to the West and other powers during the Century of Humiliation. This elevates the South China Sea to a survival-level interest for China’s leadership.
The Chinese leadership cannot compromise, let alone back down, without risking severe damage to domestic stability, including nationalist protests and even the survival of the regime itself. The fates of the Qing Dynasty and the Nationalist regime are well remembered, and major leadership changes are due next year.
U.S. Activities
The U.S. stance has been carefully deliberate and measured. Since May 2015, when we asserted our right to “fly, sail and operate anywhere international law allows,” we performed three very-well-telegraphed “Freedom of Navigation” operations. But “Innocent Passage” rules were reportedly followed, and the message became confused.
Operations of U.S. naval and air forces are a critical, necessary response in this situation. They must be continued and even increased, and done without publicity and fanfare. But they are not, by themselves, sufficient. A much more difficult challenge is assuring the access of all claimants to the resources of the sea, both animal and mineral. This will require maritime law enforcement means as well as some agreed-upon system for responsible and sustainable resource management.
For our part, our much-discussed “pivot” to Asia is incomplete. Defense and security initiatives are moving forward deliberately, but the centerpiece of our engagement with Asia, the Trans-Pacific Partnership (TPP), is stalled. Our quadrennial election rhythms and requirements have overtaken TPP progress. The Republican and Democratic presidential candidates are both now solidly antitrade—ironically an area of agreement in this dismal political process. An end of the year push for ratification in a lame duck Congress will be risky, as the president-elect as well as much of the electorate is sure to be dead set against it, if we take each at his or her word.
At best, perhaps we can get a “reset” but that will require—if not major rewrite and time-consuming referral back to the signatories—major “trade adjustments” at home to protect threatened constituents before Senators can support ratification without career change. Far from a tangential issue, TPP purgatory damages our prestige when we need it most. The TPP’s ever-pending status sends a message that our “pivot” is solely about militarizing our Asian policy. The longer the “pivot” is perceived to be only about the military, the longer we will be hampered in our diplomacy, the longer the “containment” myth will be perpetuated and the longer our friends will be left hanging.
Given China’s often declared and well signaled intentions, our position in the region must be founded on an undoubted deterrent capability centered on the defense of Japan and other nations in the First Island Chain and bordering the South China Sea. “Given rapid advances in Chinese military capabilities, the consequences of conflict with that nation are almost unthinkable and should be avoided to the greatest extent possible, consistent with U.S. interests. It is therefore critical to achieve the right combination of assurance and dissuasion and to maintain a favorable peace before conflict occurs. At the same time the ability of the United States to work with both allies and partners to achieve those peaceful ends will depend on the perceptions both of allies and partners and of China of the U.S. ability to prevail in the event of conflict.”
This is especially important to deterring a seizure, or a blockade, of additional features. Allied and partner nations need to fully contribute to the security of threatened territory. Unilateral U.S. action is not a viable course of action. Japan’s skillful and determined actions in the East China Sea provide a powerful precedent.
In addition to military capabilities, and perhaps even more urgent, is the creation of powerful maritime surveillance and maritime law enforcement capabilities. Our allies and partners need to be able to counter illegal activities in their own seas. Coupled with this might be an aggressive diplomatic effort to create a system to manage marine resources—primarily fish, but also seabed minerals. Any purposeful destruction of the common environmental heritage of the global commons must bring a severe political and reputational price. Supporting and advocating a marine conservation and restoration effort should allow us to regain a bit of dominance in the ongoing competition over the narrative. Perhaps non-governmental environmental organizations can find their voice again if a preservation and restoration effort gets started. The creation of a system that establishes and enforces rules of conduct over fish and minerals can be a positive for those industries. This problem is not confined to the South China Sea. China’s raids on the coral resources in Japan’s Ogasawara islands about one thousand kilometers south of Tokyo has generally passed without comment in much of the global media.
Ubiquitous surveillance capability including details of fishing boat locations, with real time public results, must be deployed. The Asia Maritime Transparency Initiative at the Center for Strategic and International Studies provides a very compelling early prototype that should be expanded in both detail and coverage. A system of radars, coast watchers, expanded law enforcement, dispute resolution forums and social media exposure of Illegal, Unregulated and Unreported—the so-called IUU—fishing with pictures, identification and geolocation may also be helpful.
Port and airfield infrastructure construction along the littoral would aid commerce as well as law enforcement. Funding could be through loans, foreign aid and mutual development projects by the United States, Japan, Australia and India. Conversion of civil aircraft and ships to Coast Guard and Fisheries Enforcement craft would aid surveillance and enforcement efforts.
Other actions we might consider include maritime coalition activities without declarations. Quiet but effective cooperation among the United States, Japan, Australia and India would be very helpful.
Trade deals do not have to wait for us to sort out the TPP again. Our industries, our states and our municipalities can be far more adept at the retail level than the federal government. Sister city, sister county, and similar arrangements are guaranteed to have more local salience than something designed in Washington to fit all. We already have significant activity underway, especially in agriculture.
This new phase in the South and East China Seas calls for a new, broader, stronger, approach. It’s no longer just “fly, sail and operate” with military and naval forces, although that is the foundation. It’s protein and energy for growing populations in all of Asia. The challenge moves to new levels and we must move with it—or preferably ahead of it. Within a framework of undoubted deterrent capability, we must counter “grey zone” challenges with compelling strategies to enhance the common welfare of all affected nations. We must make the “global commons” real. It must be an offer no nation can refuse. Our active leadership must be brought to the building of support across many diverse interests.
Wallace C. Gregson is a retired Marine, former assistant secretary of defense for Asian and Pacific Security Affairs 2009–11, currently senior advisor at Avascent International and senior director for China and the Pacific at the Center for the National Interest.
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