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Indo-Asia-Pacific

A Sign of the Times: China’s Recent Actions and the Undermining of Global Rules, Pt. 3

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By Tuan N. Pham

Last March, CIMSEC published an article titled “A Sign of the Times: China’s Recent Actions and the Undermining of Global Rules, Part 1” highlighting three troubling developments that oblige the United States to further encourage and challenge China to become a more responsible global stakeholder that contributes positively to the international system. The article noted Beijing is trying to convince others to accept the self-aggrandizing and self-serving term of “near-arctic state”; to fulfill its nationalistic promise to the Chinese people and reclaim the disputed and contested South China Sea (SCS) from ancient times; and to expand its “sharp power” activities across the globe.

A month later, CIMSEC published a follow-on article underscoring that these undertakings continue to mature and advance apace. The article featured China possibly considering legislation to seemingly protect the fragile environment in Antarctica, but really to safeguard its growing interests in the southernmost continent; taking more active measures to reassert and preserve respectively its perceived sovereignty and territorial integrity in the SCS; and restructuring its public diplomacy (and influence operations) apparatuses to better convey Beijing’s strategic message and to better shape public opinion abroad. At the end of the article, the author commented that although the United States made progress last year calling out wayward and untoward Chinese behavior by pushing back on Chinese unilateralism and assertiveness, strengthening regional alliances and partnerships, increasing regional presence, reasserting regional influence, and most importantly, incrementally reversing years of ill-advised accommodation; there is still more America can do.

The following article lays out previously recommended ways and means that Washington can impose strategic costs to Beijing and regain and maintain the strategic initiative. Providentially, the Trump Administration has implemented many of them, but the real challenge remains in sustaining the efforts and making the costs enduring. Otherwise, Beijing will just wait out the current administration in the hopes that the next one will advance more favorable foreign policies. Alternatively, they could also step up their “sharp power” activities to influence extant U.S. foreign policies and/or undermine the current U.S. administration’s political agenda and diminish its re-election prospect in 2020.         

What America Can Do in the Indo-Pacific

 The new National Security Strategy and National Defense Strategy call for embracing strategic great powers competition with rising China. They both make the case that when two powers, one dominant (United States) and one rising (China), with competing regional and global strategies extend into one’s another security and economic spheres, the geopolitical landscape is ripe for friction. However, this competition is not to be feared but to be expected and embraced. America must challenge China’s rise if it continues to not be peaceful and undermines the global rules that provide global peace and prosperity for all.  

China will likely remain the economic partner of choice for the Indo-Pacific, while the United States will likely remain the security partner of choice. As this China-U.S. competition grows and intensifies, balancing these complex and dynamic relationships will become increasingly challenging as regional countries feel greater pressures to choose sides. The U.S. should continue to pursue stronger regional security ties and strive to be a more dependable and enduring partner in terms of policy constancy, resolve, and commitment. Strengthening old alliances and partnerships, and forging new ones with Hanoi, New Delhi, and others will be beneficial.  

The “most effective counterbalance” to China’s campaign of tailored coercion against its weaker neighbors will still be U.S. persistent presence and attention (and focus) in the form of integrated and calibrated soft and hard deterrent powers – multilateral diplomacy, information dominance, military presence, and economic integration. 

The “most promising and enduring check” to China’s expansive regional and global ambitions will still be economic integration. The U.S. should move forward on more bilateral trade agreements; support the emerging Trans-Pacific Partnership-11 (TPP-11) initiative; and/or reconsider bringing back the TPP itself to bind the United States to the other regional economies, guarantee an international trading system with higher standards, and complement the other instruments of national power. Otherwise, Washington may inadvertently drive the Indo-Pacific nations toward other economic alternatives like the China-led Regional Comprehensive Economic Partnership, Asian Infrastructure Investment Bank, and Belt and Road Initiative. 

China is a signatory of the United Nations Convention on the Law of the Sea (UNCLOS) but often violates its provisions, whereas the United States has not ratified UNCLOS but has been its foremost champion on behalf of freedom of navigation, global commerce, and international rule of law. The U.S. should consider ratifying UNCLOS if challenges are going to have more gravitas and be taken more seriously by the international community, otherwise, the status quo simply strengthens Beijing’s ability to call into question Washington’s sincerity to international norms.

The U.S. must keep reframing and countering when appropriate the narratives that China pushes with accusations of American containment and hypocrisy while promoting a perception of  China’s global benevolence and benign rise. Washington’s message is more often than not reactive and defensive, not synchronized, or sometimes nothing at all. The U.S. can seize the messaging initiative like during the 2017 Shangri La Dialogue with the keynote speech by Australian Prime Minister Turnbull, remarks by American Secretary of Defense Mattis during the first plenary session (United States and Asia-Pacific Security), and comments by former Japanese Minister of Defense Inada during the second plenary session (Upholding the Rules-based Regional Order). The U.S. can continue to acknowledge that both countries have competing visions, highlight the flawed thinking of Beijing’s approach, champion its own approach as the better choice, and call out wayward and untoward Chinese behavior when warranted. This can include China’s expansive polar ambitions, intrusive sharp power activities, and destabilizing SCS militarization, but the U.S. should also give credit or commend when appropriate, such as China’s economic sanctions against North Korea. The U.S. cannot euphemize in its messaging, and whenever possible, should synchronize communication throughout the whole-of-government and international partners while reiterating at every opportunity. There can be no U.S. policy seams or diplomatic space for China to exploit.

The U.S. must take each opportunity to counter China’s public diplomacy point-for-point, and keep repeating stated U.S. diplomatic positions to unambiguously convey U.S. national interests and values such as:

  • The United States supports the principle that disputes between countries, including disputes in the ECS and SCS, should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law.
  • The United States supports the principle of freedom of navigation, meaning the rights, freedoms, and uses of the sea and airspace guaranteed to all nations in international law. United States opposes claims that impinge on the rights, freedoms, and lawful uses of the sea that belong to all nations. United States takes no position on competing claims to sovereignty over disputed land features in the East China Sea (ECS) and SCS.
  • Claims of territorial waters and economic exclusive zones (EEZ) should be consistent with customary international law of the sea and must therefore, among other things, derive from land features. Claims that are not derived from land features are fundamentally flawed.
  • Parties should avoid taking provocative or unilateral actions that disrupt the status quo or jeopardize peace and security. United States does not believe that large-scale land reclamation with the intent to militarize outposts on disputed land features is consistent with the region’s desire for peace and stability.
  • United States, like most other countries, believes that coastal states under UNCLOS have the right to regulate economic activities in their EEZ, but do not have the right to regulate foreign military activities in their EEZ.
  • Military surveillance flights in international airspace above another country’s EEZ are lawful under international law, and the United States plans to continue conducting these flights as it has in the past. Other countries are free to do the same.

What America Can Do in the SCS

Since the start of 2018, China appears embarked on a calculated campaign to determinedly reassert and preserve its perceived sovereignty and territorial integrity in the SCS through words and deeds. Beijing believes that sharp and emphatic “grey zone” operations and activities will once again compel Washington to back down in the SCS. Washington did little when Beijing illegally seized Scarborough Shoal in 2012; brazenly reclaimed over 3200 acres of land over the next five years despite a 2002 agreement with the ASEAN not to change any geographic features in the SCS; barefacedly broke the 2015 agreement between Xi Jinping and Barack Obama to not militarize these Chinese-occupied geographic features; and blatantly disregarded the landmark 2016 Arbitral Tribunal ruling.          

The U.S. can continue to reframe the SCS as a strategic problem (and not a regional issue) that directly involves the United States and obliges China to act accordingly. Explicitly conveying to Beijing that the SCS is a U.S. national interest and making the SCS a “bilateral” U.S.-China issue may induce Beijing to rethink and recalibrate its revisionist strategy. The U.S. can turn the tables and make Beijing decides which is more important to its national interests – the SCS or its strategic relationship with Washington (trade, military-military, etc.). Stay firm and consistent to stated SCS positions :

  • No additional island-building and no further militarization
  • No use of force or coercion by any of the claimants to resolve sovereignty disputes or change the status-quo of disputed SCS features
  • Substantive and legally binding Code of Conduct that would promote a rules-based framework for managing and regulating the behavior of relevant countries in the SCS and permissibility of military activities in the EEZ in accordance with UNCLOS.

Otherwise, deferring to Beijing on aforesaid issues will only reinforce the perception in Beijing that Washington can be influenced and maneuvered with little effort.

Beijing undermined the International Tribunal for the Law of the Sea by drawing red lines around the reclaimed and disputed geographic features. Washington and the international community must therefore buttress the Tribunal’s authority and legitimacy through words and deeds. There is value in continuing to challenge Beijing’s excessive and contested maritime claims in the SCS through a deliberate, calibrated, and enhanced campaign of presence operations – transits, exercises, and freedom of navigation operations (FONOP). Otherwise, failing to conduct these routine operations in the aftermath of the landmark 2016 ruling, particularly FONOPs, sends the wrong strategic signal and further emboldens Beijing to continue its brazen and destabilizing militarization of the SCS. Combined, multi-national exercises can underscore the universal maritime right of all nations to fly, sail, and operate wherever international law permits.

China pursues a very broad, long-term maritime strategy and will view any perceived U.S. force posture reduction as a reward (tacit acknowledgement and consent) for its unilateral rejection of the Tribunal ruling, a win for its strategy and preferred security framework, and another opportunity to reset the regional norms in its favor. Reduction may also increase Beijing’s confidence in its ability to shape and influence Washington’s decisions and encourage China to press the United States for additional concessions, in return for vague and passing promises of “restraint.”

Although Manila and Washington did not capitalize on the hard-fought legal victory over China’s excessive and contested maritime claims in the SCS, it is still not too late to do so. The U.S. can encourage and support Hanoi, Kuala Lumpur, and other Association of Southeast Asian Nations (ASEAN) countries to put additional pressures such as legal challenges, public diplomacy, and collective maritime activities on Beijing to curb its assertiveness and unilateralism, stop its land reclamation and militarization activities, and come in good faith to the multilateral (not bilateral) negotiating table for a peaceful and enduring resolution of the competing and contested maritime claims.

Now is Not the Time to Back Down in the SCS

All told, years of American acquiescence and accommodation may have “unintentionally and transitorily” eroded international rule of law and global norms while diminishing the regional trust and confidence in U.S. preeminence. Furthermore, this accommodation may have weakened some of the U.S. regional alliances and partnerships, undermined Washington’s traditional role as the guarantor of the global economy and provider of regional security. These accommodations have accelerated the pace of China’s deliberate march toward regional preeminence and ultimately global preeminence.

So, as to not further give ground to Beijing in the strategic waterway, Washington cannot back down now in the SCS. To do so would further embolden Beijing to expand and accelerate its deliberate campaign to control the disputed and contested strategic waterway through which trillions of dollars of global trade flows each year and reinforce Beijing’s growing belief in itself as an unstoppable rising power and Washington as an inevitable declining power that can be intimidated out of the SCS and perhaps eventually the greater Indo-Pacific in accordance with its grand strategic design for national rejuvenation (the Chinese Dream). For Beijing, controlling the SCS is a step toward regional preeminence and eventually global preeminence.      

Conclusion

Beijing’s strategic actions and activities are unwisely and dangerously undermining the current global order that it itself has benefited from. Hence, Washington has a moral and global  obligation of leadership to further encourage and challenge China to become a more responsible global stakeholder that contributes positively to the international system. Otherwise, Beijing will continue to view U.S. acquiescence and accommodation as tacit acknowledgement and consent to execute its strategic ambitions and strategies unhindered and unchallenged. The U.S. window of opportunity to regain and maintain the strategic high ground and initiative will not remain open forever.

Tuan Pham serves on the executive committee of the Yokosuka Council on Asia-Pacific Studies and is widely published in national security affairs and international relations. The views expressed therein are his own and do not reflect the official policy or position of the U.S. Government.

Featured Image: Chinese dragon statute (Wikimedia Commons)

Territorial and Law of the Sea Disputes

China’s Claim to the Spratly Islands is Just a Mistake

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This article is an adaptation of an academic publication by Bill Hayton published in ‘Modern China’ as ‘The Modern Origins of China’s South China Sea Claims: Maps, Misunderstandings, and the Maritime Geobody.’ A version of this article was published in Vietnamese by BBC and may be read here.

By Bill Hayton

The South China Sea is a dangerous place because of the layering of several different struggles on top of one another. There are struggles over the future of the world order, struggles between regional powers, and struggles over maritime resources. But underlying them all is a knot of territorial disputes over a few hundred tiny rocks and reefs. Given how much attention the disputes currently attract, it is surprising how little attention has been paid to their origins. A few flawed accounts were written several decades ago but more evidence has come to light since then and it is time to revise the conventional wisdom. Governments like to pretend that their claims to the hundreds of rocks and reefs in the sea are historical and logical. However, after several years of studying them, it is clear that this is far from true.

The focus of most of the current trouble in the South China Sea is the Spratly Islands and a few underwater features that are closer to the coasts of Vietnam and Borneo. These are a very long way from the Chinese mainland and China has never made clear the precise origins of its claim to them. My own research – just published in the academic journal ‘Modern China’ – leads me to conclude that the Chinese claim only emerged because of some poor translation and bad map-making during the 1930s. My conclusion is that China’s claim to the Spratly Islands is actually a mistake.

The First Claim

The story of China’s claims in the South China Sea began in 1907 with the discovery of a Japanese merchant digging up petrified bird droppings on the island of Pratas (between Hong Kong and Taiwan). Nishizawa Yoshiji was one of many Japanese entrepreneurs mining guano for fertilizer all over the Pacific. However, there were rumors that Japan was also planning to build a naval base on Pratas and that concerned the United States and its newly-acquired colony in the Philippines. The American government informed officials in Beijing in late 1907 but it took well over a year before a Chinese ship was sent to investigate. In March 1909, Chinese officials confirmed Nishizawa’s presence. That triggered large protests in southern China and a boycott of Japanese products. The Japanese government agreed to negotiations, which eventually led to Japan recognizing Chinese sovereignty over Pratas.

However, at the same time, the southern Chinese authorities learned about the existence of the Paracel Islands, apparently for the first time, and became concerned that Japan might try to annex them. This led to an expedition in May and June 1909 during which China formally claimed sovereignty over the Paracels for the first time. The Chinese ships spent three days among the islands firing cannon and planting flags before returning home. However, it was immediately clear to the expedition leaders that the Paracels were not going to deliver any riches. Newspaper accounts mention a plan to turn them into a penal colony but within weeks the authorities had completely lost interest in the islands. They did not return until the 1920s.

The next major incident in the South China Sea created complete confusion – a muddle that infected the earlier academic accounts of the Chinese claim and still affects historical discussions to this day. In December 1931 France – the colonial power in Indochina – claimed sovereignty over the Paracel Islands and, nine months later, China protested. In July 1933, while the two governments were still arguing over the Paracels, France also announced the annexation of six of the Spratly Islands. This led to great confusion in China. It is clear from official documents and newspapers of the time that the Chinese authorities did not know the difference between the Spratlys and the Paracels. They thought that the islands that France had just annexed were the same that China had claimed in 1909. It took several weeks for the confusion to be cleared up. During the discussions the Chinese Navy even sent a telegram to the Chinese Foreign Ministry asserting that the Spratly Islands did not exist! The situation was only cleared up with the help of maps provided by American officials in Manila. In the end, the Chinese government decided that it could not prove a claim to the Spratlys and so did not protest against France’s actions.

However, this confusion led the Chinese government to instruct its ‘Land and Water Maps Review Committee’ to investigate the situation. Among the committee’s other tasks, it inspected and translated maps to show which islands were the Paracels and which were the Spratlys. It also gave Chinese names to them – but these were simply translations or transliterations. North Danger Reef became Beixian 北險礁 (a translation from English). Spratly Island became Si-ba-la-tuo 斯巴拉脫島 (a transliteration of the name of the English sea captain, Richard Spratly), and Luconia Shoals was transliterated as Lu-kang-ni-a 盧康尼亞滩. My own research suggests that the list of names the committee translated was probably taken from the China Sea Directory, published in 1906 by the United Kingdom Hydrographic Office.

However, in the process, the committee made some mistakes. It seems to have been particularly confused by the English nautical terms “bank” and “shoal.” Both mean an area of shallow sea—the former describes a raised area of seabed, the latter is a nautical expression derived from Old English meaning “shallow.” However, the committee chose to translate both as tan 灘, which has the ambiguous translation of “sandbank,” a feature that might be above or below water.

The committee gave one particular underwater feature, James Shoal, the Chinese name Zengmu tan 曾姆滩, and another, Vanguard Bank, the name Qianwei tan 前衛滩. Zengmu is the transliteration of “James,” Qianwei is a translation of “vanguard,” and tan is the translation of “bank” and “shoal.” This translation choice has had major consequences, as we shall see. Why it decided to make a particular point of selecting these two underwater features for its list is also something of a mystery.

My hypothesis is that, since they did not undertake any of their own hydrographic surveys, committee members were completely guided by the maps that they were copying. One map that would have been part of any standard collection at the time was one produced by Edward Stanford Ltd. of London. The company’s 1918 map entitled Asiatic Archipelago gives particular prominence to both James Shoal and Vanguard Bank and to most of the other features listed by the committee (see Figure 1). I suspect that this map also guided the committee’s choices about which features to give Chinese names to.

Figure 1. Asiatic Archipelago, showing James Shoal and Vanguard Bank as underwater features (circles added by author). Map published by Edward Stanford Ltd., London, 1918 (British Library shelfmark Maps 88715.

In 1936, Bai Meichu 白眉初, a founder of the China Geography Society, used the committee’s information to publish his New Atlas of China’s Construction 中華建設新圖. Taking his cue from the committee’s mistranslation, he made a massive mistake. He drew the underwater James Shoal and Vanguard Bank as islands. He then added a U-shaped line around the South China Sea as far south as James Shoal and as far southwest as Vanguard Bank (see Figure 2). Bai’s meaning was clear—the line marked his “scientific” understanding of China’s rightful territory. Because of his mistakes the James Shoal and Vanguard Bank would later became the limits of China’s claim in the South China Sea. This was the very first time that such a line had been drawn on a Chinese map. It was not a state document though; it was the work of a private individual.

Figure 2. Map from New Atlas of China’s Construction (1936) published by Bai Meichu. James Shoal is labeled as Zengmu tan 曾姆滩, and Vanguard Bank as Qianwei tan 前衛滩. Both are drawn as islands with solid outlines and colored infill and are encompassed by the Bai’s boundary line. (Highlighting circles added by author) Source: Beijing Normal University Newspaper no. 295 (May 10, 2012), http://bnu.cuepa.cn/show_more.php?doc_id=613549.

Bai added some other innovations, too. He also drew the underwater features of the Macclesfield Bank (in the center of the South China Sea) as islands. This may be the reason why, to this day, the Chinese state talks about four “archipelagos” in the sea, even though one of them demonstrably does not exist!

The Republic of China still did not claim the Spratlys, however. As late as 1943, the ROC Ministry of Information published its China Handbook 1937–43, a comprehensive guide to the country’s geography, history, politics, and economics. On its opening page it stated that “the territory of the Republic of China extends from [the Sajan Mountains in the north] . . . to Triton Island of the Paracel Group.”

This view of China’s maritime territory would change dramatically over the following three years. It seems likely that this change was facilitated, perhaps even orchestrated, by two of Bai Meichu’s students. In 1927, while he was chair of the Department of History and Geography at Beijing Normal University, Bai taught Fu Jiaojin 傅角今 and Zheng Ziyue 鄭資約. After the Second World War, they were hired by the Chinese Ministry of Interior to advise the government on its territorial boundaries. They drew the government maps in 1946 and 1947 that led to the official Chinese claim in the South China Sea. Fu and Zhang used Bai’s map and his ‘U-shaped line’ to guide them. Thus China would claim the underwater features of the James Shoal and Vanguard Bank as its territory. This makes no sense at all – except if you understand this strange piece of history. The Chinese claim is the result of a series of mistakes.

In October 1947 the ROC Ministry of the Interior renamed the islands within its new claim. Most of the 1935 translations and transliterations were replaced by new, grand-sounding and more “Chinese” titles. For example, the Chinese name for Spratly Island was changed from Si-ba-la-tuo to Nanwei 南威島 (Noble South) and Scarborough Shoal was changed from Si-ka-ba-luo 斯卡巴洛礁 (the transliteration) to Minzhu jiao 民主礁 (Democracy Reef). Vanguard Bank’s Chinese name was changed from Qianwei tan to Wan’an tan 萬安灘 (Ten Thousand Peace Bank). This process was repeated across the archipelagos. The ministry seems to have recognized its earlier problem with translating “shoal” at this time because it coined the word ansha 暗沙, literally “hidden sand,” as a neologism to use instead of tan 灘 in the names of several features, including James Shoal, which was renamed Zengmu ansha.

It was not until 1948, therefore, that the Chinese state formally extended its territorial claim in the South China Sea to the Spratly Islands, as far south as James Shoal. Clearly something had changed in the years between July 1933, when the Republic of China government was unaware that the Spratly Islands existed, and April 1947, when it could “reaffirm” that the southernmost point of its territory was James Shoal.

Conclusion

Although the Chinese government likes to say that it has an ancient and historical claim to the reefs and rocks in the South China Sea, a detailed examination of evidence shows that it actually emerged in the first half of the twentieth century. It also changed during a 40-year period 1907-1947. The whole process was filled with confusion and misunderstanding. A few mistakes by a small number of poorly-informed Chinese officials and academics back in the 1930s have created lingering confusion that still poisons the politics of Southeast Asia to this day.

Bill Hayton is an Associate Fellow with the Asia-Pacific Programme at Chatham House, the Royal Institute of International Affairs, London. He is the author of The South China Sea: The Struggle for Power in Asia and Vietnam:Rising Dragon.

Featured Image: Satellite image taken in June 2015 of China’s land reclamation efforts on Mischief Reef in the Spratly Islands. (AMTI/CSIS)

Asia-Pacific

A Sign of the Times: China’s Recent Actions and the Undermining of Global Rules

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By Tuan N. Pham

More Chinese assertiveness and unilateralism are coming. In January, this author’s article in a separate publication assessed strategic actions that Beijing will probably undertake in 2018; and forecasted that China will likely further expand its global power and influence through the ambitious Belt and Road Initiative (BRI), expansive military build-up and modernization, assertive foreign policy, and forceful public diplomacy. Recently, three worrying developments have emerged that oblige the United States to further challenge China to become a more responsible global stakeholder that contributes positively to the international system. Otherwise, passivity and acquiescence undermine the new U.S. National Security Strategy; reinforce Beijing’s growing belief that Washington is a declining power; and may further embolden China – a self-perceived rising power – to execute unchallenged and unhindered its strategic roadmap (grand strategy) for national rejuvenation (the Chinese Dream). 

Near-Arctic State

On January 26, Beijing followed up last year’s policy paper “Vision for Maritime Cooperation Under the BRI” that outlined its ambitious plan to advance its developing global sea corridors (blue economic passages connected to the greater Belt and Road network) – with its first white paper on the Arctic. The white paper boldly proclaimed China’s strategic intent to actively partake in Arctic activities as a “near-Arctic state.” Activities include but are not limited to the development of Arctic shipping routes (Polar Silk Road); exploration for and exploitation of oil, gas, mineral, and other material resources; utilization and conservation of fisheries; and promotion of Arctic tourism.     

Beijing rationalizes and justifies this expansive political, economic, and legal stance as “the natural conditions of the Arctic and their changes have a direct impact on China’s climate system and ecological environment, and, in turn, on its economic interests in agriculture, forestry, fishery, marine industry, and other sectors.” In other words, China stakes its tenuous Arctic claims on geographic proximity; effects of climate change on the country; expanding cross-regional diplomacy with extant Arctic states; and the broad legal position that although non-Arctic countries are not in a position to claim “territorial sovereignty”, they do have the right to engage in scientific research, navigation, and economic activities. And while vaguely underscoring that it will respect and comply with international law like the United Nations Convention on the Law of the Sea (UNCLOS) in a “lawful and rational matter”, Beijing was quite explicit and emphatic in the white paper that it will use Arctic resources to “pursue its own national interests.”

There is no legal or international definition of “near-Arctic state.” China is the sole originator of the term. Beijing is clearly attempting to inject itself into the substance of Arctic dialogue and convince others to accept the self-aggrandizing and self-serving term. Furthermore, as noted by Grant Newsham, the phrase itself is a representative exemplification of how China incrementally and quietly builds concepts, principles, vocabulary, and finally justification for pursuing its national interests and global ambitions. Consider the following evolution that is typical of how key elements of China’s strategic lexicon come to the fore like “near-Artic state and the South China Sea (SCS) has been part of China since ancient times”:

Step 1 – Term appears in an obscure Chinese academic journal
Step 2 – Term appears in a regional Chinese newspaper
Step 3 – Term is used at a Chinese national conference or seminar
Step 4 – Term is used in Chinese authoritative media
Step 5 – Term is used at international conferences and academic exchanges held in China
Step 6 – China frequently refers to the term in foreign media and at international conferences
Step 7 – China issues a policy white paper stating its positions, implied rights, and an implied threat to defend those rights
Step 8 – China maintains that this has always been Beijing’s policy

 Beijing’s official policy positions on Antarctica are less clear and coherent, and appear to be still evolving. The closest sort of policy statement was made last year by China’s State Oceanic Administration when it issued a report (pseudo white paper) entitled “China’s Antarctic Activities (Antarctic Business in China).” The report detailed many of Beijing’s scientific activities in the southernmost continent, and vaguely outlined China’s Antarctic strategy and agenda with few specifics. All in all, Beijing doesn’t have a formal claim over Antarctic territory (and the Antarctic Treaty forbids any new claims), but nonetheless, China has incrementally expanded its presence and operations over the years. The Chinese government currently spends more than any other Antarctic state on new infrastructure such as bases, planes, and icebreakers. The expanding presence in Antarctica is embraced by Beijing as a way and means to build the necessary physical fundamentals for China’s Antarctic resource and governance rights.  

South “China” Sea

On February 5, released imagery of the Spratly archipelago suggests that China has almost completely transformed their seven occupied reefs – disputed by the other claimants – into substantial Chinese military outposts, in a bid to dominate the contested waters and despite a 2002 agreement with the Association of Southeast Asian Nations (ASEAN) not to change any geographic features in the SCS. At the same time, Beijing has softened the provocative edges of its aggressive militarization with generous pledges of investments to the other claimants and promising talks of an ASEAN framework for negotiating a code of conduct (CoC) for the management of contested claims in the strategic waterway. However, it is becoming increasingly apparent that China is determined to finish its militarization and then present the other claimants with a fait d’accompli before sitting down to negotiate the CoC.

The photographs show that Beijing has developed 72 acres in the SCS in 2017 and over 3200 acres in the past four years; and redirected its efforts from dredging and reclaiming land to building infrastructure (airstrips, helipads, radar and communications facilities, control towers, hangars, etc.) necessary for future deployment of aircraft to project Chinese power across the shipping routes through which trillions of dollars of global trade flows each year. On February 8, China’s Ministry of Defense announced that it recently sent advanced Su-35 fighter aircraft to take part in a joint combat patrol over the SCS.

An aerial view of the Fiery Cross Reef, now a 2.8 sq km artificial island. (Photo: CCTV)

At the end of the day, these latest images will not change Beijing’s agenda and plans for the SCS. They do however provide a revealing glimpse of what is happening now and what may happen in the near future on these disputed and contested geographic features (rocks and reefs) – and it sure does not look benign and benevolent as China claims.     

At the 54th Munich Security Conference from February 16-18, the Chinese delegation participated in an open panel discussion on the SCS and took the opportunity to publicly refute the prevailing conventional interpretation of international maritime law. They troublingly stated for the first known time in an international forum that “the problem now is that some countries unilaterally and wrongly interpreted the freedom of navigation of UNCLOS as the freedom of military operations, which is not the principle set by the UNCLOS.” This may be that long-anticipated policy outgrowth from the brazen militarization of the SCS and the latest regression of the previous legal and diplomatic position that “all countries have unimpeded access to navigation and flight activities in the SCS.” Now that China has the supposed ways and means to secure the strategic lines of communication, Beijing may start incrementally restricting military ships and aircraft operating in its perceived backyard, and then slowly and quietly expand to commercial ships and aircraft transiting the strategic waterway. If so, this will be increasingly problematic as the People’s Liberation Army Navy continues to operate in distant waters and in proximity to other nations’ coastlines. China will then have no choice but to eventually address the legal and diplomatic inconsistency between policy and operations – and either pragmatically adjust its policy or continue to assert its untenable authority to regulate military activities in its claimed exclusive economic zones, in effect a policy of “do as I say, not do as I do.”

In the public diplomacy domain, Beijing is advancing the narrative that Washington no longer dominates the SCS, is to blame for Chinese militarization of the SCS, and is destabilizing the SCS with more provocative moves. On January 22, the Global Times (subsidiary of the People’s Liberation Army’s Daily) published an op-ed article cautioning American policymakers to not be too confident about the U.S. role in the SCS nor too idealistic about how much ASEAN nations will support U.S. policy. Consider the following passage: “For ASEAN countries, it’s much more important to avoid conflicts with Beijing than obtain small favors from Washington. Times are gone when the United States played a predominant role in the SCS. China has exercised restraint against U.S. provocations in the SCS, but there are limits. If the U.S. doesn’t stop its provocations, China will militarize the islands sooner or later. Then Washington will be left with no countermeasure options and suffer complete humiliation.” On February 25, the same state-owned media outlet wrote that “China should install more military facilities, such as radar, aircraft, and more coastguard vessels in the SCS to cope with provocative moves by the United States”; and predicted that the “Sino-U.S. relations will see more disputes this year which will not be limited to SCS, as the United States tries to deal with a rising China.”

On January 17, USS Hopper (DDG-70) conducted a freedom of navigation operation (FONOP) during which it passed within 12nm of Scarborough Shoal. This was the fifth U.S. naval operation in the last six months to challenge China’s excessive maritime claims in the SCS. The Chinese media largely portrayed the operation as the latest in a series of recent U.S. actions intended to signal a new policy shift consistent with the new muscular U.S. National Security Strategy and U.S. National Defense Strategy and reflective of growing U.S. misgivings over China’s rise. The Chinese media is also increasingly depicting Beijing as having the upper hand in the SCS at the expense of rival Washington; and that U.S. FONOPs are now pointless since China has multiple options to effectively respond and there’s very little the United States can do about it.

Sharp Power (Influence Operations) Growing Sharper

In late-January, African Union (AU) officials accused Beijing of electronically bugging its Chinese-built headquarters building, hacking the computer systems, downloading confidential information, and sending the data back to servers in China. A claim that Beijing vehemently denies, calling the investigative report by the Le Monde “ridiculous, preposterous, and groundless…intended to put pressure on relations between Beijing and the African continent.” The fact that the alleged hack remained undisclosed for a year after discovery and the AU publicly refuted the allegation as Western propaganda speaks to China’s dominant relationships with the African states. During an official visit to Beijing shortly after the report’s release, the Chairman of the AU Commission Moussa Faki Mahamat stated “AU is an international political organization that doesn’t process secret defense dossiers…AU is an administration and I don’t see what interest there is to China to offer up a building of this type and then to spy.” Not surprisingly, Fakit received assurances from his Chinese counterpart afterwards on five key areas of future AU-China cooperation – capacity building, infrastructure construction, peace and security, public health and disease prevention, and tourism and aviation.

African Union Conference Center (Andrew Moore via Wikimedia Commons)

The suspected hack underscores the high risk that African nations take in allowing Chinese information technology companies such prominent roles in developing their nascent telecommunications backbones. The AU has since put new cybersecurity measures in place, and predictably declined Beijing’s offer to configure its new servers. Additionally, if the report is true, more than just the AU may have been compromised. Other government buildings were constructed by China throughout the African continent. Beijing signed lucrative contracts to build government buildings in Zimbabwe, Republic of Congo, Egypt, Malawi, Seychelles, Guinea-Bissau, Lesotho, and Sierra Leone.

On January 23, President Xi Jinping presided over a Chinese Communist Party (CCP) leading group meeting to discuss how better to deepen the overall reform of the central government. He emphasized that 2018 will be the first year to implement the spirit of last year’s 19th National Party Congress and the 40th anniversary of China’s opening up to the West and integration into the global economy. The meeting reviewed and approved several resolutions (policy documents) to include the “Guiding Opinions on Promoting the Reform and Development of Confucius Institute.” The new policy synchronized the promotion of reform and development of the Confucius Institute; and directed both to focus on the “building of a powerful socialist country with Chinese characteristics, serving Beijing’s major powers diplomacy with Chinese characteristics, deepening the reform and innovation, improving the institutional mechanisms, optimizing the distribution structure, strengthening the building efforts, and improving the quality of education” – so as to let the latter (Confucius Institute) become an important force of communication between China and foreign countries.

The seemingly benign and benevolent Confucius Institute is quite controversial, and is now receiving greater scrutiny within the various host countries for covertly influencing public opinions in advancement of Chinese national interests. In the United States, FBI Director Christopher Wray announced on February 23 that his agency is taking “investigative steps” regarding the Confucius Institutes, which operate at more than 100 American colleges and universities. These Chinese government-funded centers allegedly teach a whitewashed version of China, and serve as outposts of Beijing’s overseas intelligence network.

On February 17, Xi issued a directive to cultivate greater support amongst the estimated 60 million-strong Chinese diaspora. He called for “closely uniting” with overseas Chinese in support of the Chinese Dream, as part of the greater efforts and activities of the United Front – a CCP organization designed to build broad-based domestic and international political coalitions to achieve party objectives. He stressed that “to realize the great rejuvenation of the Chinese nation, we must work together with our sons and daughters at home and abroad…It is an important task for the party and the state to unite the vast number of overseas Chinese and returned overseas Chinese and their families in the country and play their positive role in the great rejuvenation of the Chinese nation.” Ultimately, he hopes these overseas Chinese will collectively cooperate to counter political foes of the CCP, advance the party’s political agenda, and help realize broader Chinese geo-economic ambitions such as the BRI.

Conclusion

The aforementioned troubling and destabilizing developments egregiously challenge the rules-based global order and U.S. global influence. Like China’s illegal seizure of Scarborough Shoal in 2012 and Beijing’s blatant disregard for the landmark ruling by the International Tribunal of the Permanent Court of Arbitration in 2016, they further erode the trust and confidence in the international rule of law (and norms) and undermine America’s traditional role as the guarantor of the global economy and provider of regional security, stability, and leadership. If the international community and the United States do not push back now, Beijing may become even more emboldened and accelerate the pace of its deliberate march toward regional and global preeminence unchallenged and unhindered. 

Tuan Pham has extensive experience in the Indo-Pacific, and is widely published in national security affairs and international relations. The views expressed therein are his own and do not reflect the official policy or position of the U.S. Government.

Featured Image: Chinese President Xi Jinping addresses the annual high-level general debate of the 70th session of the United Nations General Assembly at the UN headquarters in New York, the United States, Sept. 28, 2015. (Xinhua/Pang Xinglei)

Territorial and Law of the Sea Disputes

South China Sea: Continuous U.S. Presence or a New Law of the Sea Treaty

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This article originally featured on Divergent Options and is republished with permission. Read it in its original form here.

By David Mattingly

National Security Situation:  The United Nations Convention for the Law of Sea (UNCLOS III) has failed to adequately define a nation’s territorial waters and to create a body which can enforce its judgements on nations involved in arbitration.

Date Originally Written:  February 7, 2017.

Date Originally Published:  March 6, 2017.

Author and / or Article Point of View:  David Mattingly is retired from the U.S. Navy and has sailed with U.S. Navy Carrier Task Groups in the South China Sea (SCS).  He holds a Masters of Arts in National Security Studies where he studied the geopolitics of the SCS and authored “The South China Sea Geopolitics: Controversy and Confrontation.”

Background:  Over the centuries, a few countries with strong navies controlled the world’s oceans.  The outcome of many conflicts fought on land often had a strong maritime element.  Dutch jurist Hugo Grotius first addressed the Law of Sea in his 1609 treatise Mare Liberum in which he established the idea of the freedom of the seas[1].  After  World War II and the emergence of the United Nations, the first Convention of the Law of the Sea (UNCLOS) concluded with four treaties being signed: Convention on the Territorial Sea and the Contiguous Zone (CTS); Convention on the High Seas (CHS); Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR); and Convention on the Continental Shelf (CCS); as well as the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (OPSD)[2].  UNCLOS II convened in Malta to discuss territorial seas and fishery limits, however, the convention ended without agreeing upon a new treaty[3].  Today, UNCLOS III has been accepted by 167 nations and the European Union, however, although the U.S. has agreed in principle to the convention, it has not been ratified by the U.S.[4].  In the last attempt for ratification in 2012, it failed due to the “breadth and ambiguity” of the treaty and because it was not in the “national interest of the United States” to give sovereignty to an international body.  Ratification was overwhelmingly supported by the Department of Defense and the U.S. shipping industry[5][6].

Traditionally, a nation’s territorial boundary was established as a three-mile belt along its coastline based on the distance that a cannon could shoot a projectile.  All waters beyond the three-mile limit were considered international territory.

Today, the SCS is a possible flash point for confrontation over unresolved issues of the UNCLOS III between the Peoples Republic of China (PRC), its neighboring states which have joined to form the Association of Southeast Asian Nations (ASEAN), and the U.S.  The islands in the SCS remained largely uninhabited until the mid-1970s when the PRC began to lay claim to a number islands and shoals which were claimed during the reign of Emperor Yongle of the Ming Dynasty in 1405 and later claimed by the PRC in what has come to be known as the “Nine-dash line[7].”  A map which was produced after World War II extended the PRC’s territorial waters claim deep into the SCS.  France challenged the PRC’s claim in 1931 by claiming the Parcel Islands and the Spratley Islands as territory of French-Indo China which then passed to the government of Vietnam after the Franco-Indo China War ended in 1954[8].

To understand UNCLOS III, it is important to first understand the definitions of terms such as the differences between an island and a rock.  The PRC began an aggressive land reclamation program where soil was dredged from the ocean bottom to create islands, which have standing under UNCLOS III, unlike rocks and shoals which are not recognized.  The islands created by the PRC can support military garrisons, home porting of both military and fishing ships, and extend the PRC’s territorial limits under the “archipelagos concept[9].”  Within UNCLOS III, this concept furthers a nation’s territorial rights by considering the seas between the mainland and the islands claimed by a nation as a connecting, rather than separating, element.  The PRC could therefore declare an emergency and suspend the “right of innocent passage” for its self-protection.

Significance:  Merchant shipping between Asia, the Middle East, and the Americas transverse the SCS and a PRC declaration of emergency which suspended the “right of innocent passage” would have major impact in global shipping.

Option #1:  The U.S. and coalition naval forces create a continuous presence in the SCS and actively challenge PRC naval activities and construction of and on islands and rocks in dispute.

Risk:  The PRC has openly harassed and attacked ships and aircraft of the U.S. and ASEAN member nations.  The PRC has established the SCS as its home waters and had several years to construct military garrisons on the islands which it created.  It is possible that the Peoples Liberation Army Navy (PLAN) has placed surface to air missiles on the larger islands.  Additionally, the PLAN has aggressively modernized its ships and aircraft to include launching its first aircraft carrier.  As such, Option #1 may increase the possibility of a naval confrontation between the U.S. and the PRC.

Gain:  A naval coalition could provide protection for fishing and merchant shipping in the SCS and shape the narrative that the international community will not idly allow the PRC to control one of the most important sea lines of commerce.

Option #2   The U.S. and other nations could call for UNCLOS IV.  As evidenced by recent events in the SCS, UNCLOS III left many gray areas that are open for arbitration and the decisions lack the power of enforcement.  UNCLOS IV would address these gray areas and establish an enforcement framework.

Risk:  Major powers agreeing to a new UNCLOS could perceive that they have lost sovereign rights.  The UN lacks the ability to enforce treaties unless the major powers are onboard thus the text of a new UNCLOS would have to be carefully worded.

Gain:  In creating an agreement that is recognized by the international community, confrontation between the U.S., the PRC, and ASEAN may be avoided.

Other Comments:  None.

Recommendation:  None.

David Mattingly serves on the board of directors for the Naval Intelligence Professionals and is also a member of the Military Writers Guild. The views reflected are his own and do not represents the United States Government of any of its agencies. Divergent Options’ content does not contain information of an official nature nor does the content represent the official position of any government, any organization, or any group.

Endnotes:

[1]  Harrison, James. July 5, 2007. Evolution of the law of the sea: developments in law -making in the wake of the 1982 Law of the Sea Convention.

[2]  Treves, Tullio. 1958 Geneva Conventions on the Law of the Sea. United Nations.  http://legal.un.org/avl/ha/gclos/gclos.html

[3]  Second United Nations Convention on the Law of the Sea 17 March – 26 April 1960 Geneva, Switzerland. , January 8, 2017. Washington School of Law, American University. http://wcl.american.libguides.com/c.php?

[4]  The Convention of the Law of Sea. U.S. Navy Judge Advocate Corps. http://www.jag.navy.mil/organization/code_10_law_of_the_sea.htm

[5]  Patrick, Stewart M, June 10, 2012. (Almost) Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty. The Atlantic. https://www.theatlantic.com/international/archive/2012/06/-almost-everyone-agrees-the-us-should-ratify-the-law-of-the-sea-treaty/258301/

[6]  Senators Portman and Ayotte Sink Law of the Sea. July 16, 2012. Portman Senate Office, Washington, DC.

[7]  Tsirbas, Marina. , June 2, 2016. What Does the Nine-Dash Line Actually Mean? The Diplomat. http://thediplomat.com/2016/06/what-does-the-nine-dash-line-actually-mean/

[8]  Bautista, Lowell B. 2011.  Philippine Territorial Boundaries: Internal tensions, colonial baggage, ambivalent conformity.  University of Wollongong. New South Wales, http://jati-dseas.um.edu.my/filebank/published_article/3162/035 053%20Lowell%20B.%20Bautista-
 Philippine%20Territorial,%20JATI%20VOL16,%202011-%20new.pdf

[9]  Katchen, Martin H. 1976. The Spratly Islands and the Law of the Sea: “Dangerous ground” for Asian Peace. Presented at the Association of Asian Studies, Pacific Area Conference.  June.  Revised and published in the Asian Survey.

Featured Image: International Tribunal for the Law of the Sea (ITLOS)