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A Call for an EU Auxiliary Navy – under German Leadership

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By Dr. Sebastian Bruns

A popular quote reads “A ship in port is safe. But that’s not what ships are made for.” Correspondingly, one could quip “Navies are very good in constabulary tasks. But that’s not what they’re maintained for,” echoing noted political scientist Samuel Huntington in the process. More than sixty years ago, Huntington wrote about the purpose of naval forces in the early Cold War, yet some of his thoughts have an enduring value for 2016. In the Mediterranean, not one but two naval task groups are working hard to contain a humanitarian crisis at sea. While their service is admirable and strictly necessary, even as it is only a drop in a bucket, naval capabilities which are in high demand elsewhere are bound in a mission that is only a secondary role for navies. Instead, Germany should lead the way in investing in an EU auxiliary force.

A crowded boat with migrants awaits rescue by EU NAVFOR MED.
A crowded boat with migrants awaits rescue by EU NAVFOR MED.

In May 2015, the German Navy began participating in the search and rescue mission in the Central Mediterranean north of the Libyan coast, dubbed EU NAVFOR MED (Operation “Sophia”) shortly thereafter. The pressure to act had become unbearable for political decision-makers in Berlin and Brussels after yet another devastating humanitarian catastrophe which occurred somewhere on the High Seas between Libya and Italy. An overloaded boat sank during the night of 18/19 April, costing the lives of up to 800 migrants. Hundreds others had perished in the Mediterranean during the months before. Following a European Council decision and a parliamentary green light, the German Navy dispatched the frigate Hessen (F221) and the combat support ship Berlin (A1411) to provide a presence north of Libyan territorial waters. At the time, both ships were operating off the Horn of Africa and in the Easter Mediterranean to provide the German Navy with an operational reserve. Hessen and Berlin joined a number of other EU vessels, which ranged from warships to auxiliary and coast guard ships. EU NAVFOR MED was just the latest mission that the German government engaged its shrinking military forces in; on the maritime domain alone, Germany is continuously involved in naval operations in the central Mediterranean (ACTIVE ENDEAVOUR, since 2002), off the coast of Lebanon (UNIFIL, since 2006), and on the Horn of Africa (EU NAVFOR Atalanta, since 2008). German Navy participation in one or often two of the four Standing NATO Maritime Groups, exercises, training, and out-of-the-schedule naval operations such as providing cover for the destruction of Syrian chemical weapons at sea in 2014 have added pressure to (wo)men and material.

Combat support ship Berlin and frigate Hessen steam side by side in the initital provision of humanitarian assistance on the Southern flank.
Combat support ship Berlin and frigate Hessen steam side by side in the initital provision of humanitarian assistance on the Southern flank.

Cue: Queen, “Under Pressure”

Since the summer of 2015, rotating up to two ships in and out of the EU NAVFOR MED mission – such as the Berlin’s sister ship Frankfurt (A1412), or the tender Werra (A514) – put a truly severe strain on German military-operational planning. It goes without saying that adapting these venerable warships and supply vessels, which are optimized for many things other than housing, feeding, and medically caring for hundreds of castaways on board, has put a strain on the Deutsche Marine. The noble task of saving lives at sea has challenged the well-trained crews of the ships, but it hardly obscured the fundamental problem that more than two decades of defense budget cuts, strategic disorientation, and a larger disinterest in all things hard power by the German public (and most of its political masters) have caused. By default, the German Navy has turned into a low-end, operationally-minded force, where high intensity should be a design guide.

The German Navy’s dilemma, at 16,000 people and just 62 vessels at the smallest it has ever been by a December 2015 count, was illustrated best right before Christmas. In response to the November attacks in Paris, the frigate Augsburg (F213) was re-assigned from EU NAVFOR MED to provide air defense for the French aircraft carrier Charles de Gaulle in the Eastern Mediterranean and Persian Gulf. The mine hunter Weilheim (M1059), en route to return from UNIFIL to its homeport on the Baltic Sea right in time for the holidays (and probably the least-capable vessel to offer space for potentially hundreds of migrants), was tasked to remain in the Central Mediterranean. It joined the corvette Ludwigshafen am Rhein (F264), another warship tasked with a humanitarian assistance task that was hardly envisioned by strategic and operational planners in Berlin and Rostock, site of the naval command. Samuel Huntington, who warned that navies should concentrate on providing high end options and not be used for low-end missions, would probably turn over in his grave. This is not to say that other countries did not have their own challenges in providing assets to the mission, but some of them are better equipped to attend to low-end missions. The Royal Navy, for instance, dispatched HMS Enterprise (H88), a multi-role hydrographic oceanographic vessel.

The corvette Ludwigshafen am Rhein is currently part of Germany's contribution to EU NAVFOR MED. Germany's naval missions can sometimes be as complicated as its ship-naming policy.
The corvette Ludwigshafen am Rhein is currently part of Germany’s contribution to EU NAVFOR MED. Germany’s naval missions can sometimes be as complicated as its ship-naming policy.

When all you have is a hammer, every problem looks like a nail

In February 2016, the German Navy is still tied up in the EU NAVFOR MED. Privately owned platforms such as the Phoenix, operated by the Malta-based Migrant Offshore Aid Station (MOAS), and two vessels operated by Doctors without Borders (Medicines Sans Frontiers, MSF), the offshore supply ships Bourbon Argos and Dignity 1, have also at some point joined the operation (although they are not integrated into the EU force). At the same time, the Aegean Sea, which offers the shortest distance between Turkey and Greece, has moved into focus for human trafficking. The cold of winter has hardly deterred the refugees from mounting unseaworthy dinghies, rubber boats, or derelict fishery vessels that the criminal networks of human traffickers operate. In response, NATO stepped in and dispatched its Standing NATO Maritime Group 2 (SNMG2). The task force is commanded by the German rear admiral Jörg Klein and currently consists of the German Navy combat support Ship Bonn (A1413) and four frigates from Turkey, Italy, Greece, and Canada. As the New York Times noted in an article on 11 February,

“while the hastily made decision reflected the growing urgency of the situation, it was not clear that it would have much practical effect on the flow of refugees fleeing Syria’s five-year civil war: The alliance said it would not seek to block the often rickety and overcrowded migrant vessels or turn them back, and military officials were scrambling to determine precisely what role their warships would play.”

Standing NATO Maritime Group 2, seen here steaming in formation, is currently tasked with operating on the Aegan Sea refugee route.
Standing NATO Maritime Group 2, seen here steaming in formation, is currently tasked with operating on the Aegan Sea refugee route.

A European Auxiliary Navy

Granted, the political leverage for European integration is low at the moment. The European Union is struggling to fend off tendencies that call not for an ever closer union, but in fact work towards dismantling some of the EU’s accomplishments in the wake of the refugee crisis. Still, with security and defense in increasing demand, including maritime security from on Europe’s southern flank, there need to be fresh ideas that can be operationalized quickly. In the face of the deteriorating relations between the West and Russia and the disintegrating Middle East, warships should contribute to the more robust stance against political aggression and hard threats, thus focusing on more of their core tasks (no doubt requiring doctrinal and conceptual re-assessments in some European capitals). This would give NATO a stronger role, and leave the EU to take care of the low-end maritime task. It could thus serve as an example of burden-sharing between the two entities.

Germany could play a leadership role in drawing up a European auxiliary navy, reenergizing the European spirit of cooperation in the process. Such a task force could have a number of political advantages. First, it would send a strong signal that European nations are willing to work together to address the ramifications of maritime trafficking. Second, Germany would address calls from inside and outside to do more. As a maritime nation with strong normative impulses, the Federal Republic would also demonstrate to the electorate (long weary of military engagement) that it is aware of the utility of naval forces in crisis response. Naturally, German investment into an auxiliary EU navy should not come at the expense of more robust naval tasks with the German Navy, but these could be better tailored if the combat support ships, frigates, and corvettes need not be used in lesser operations. Third, if and when the current migrant crisis ebbs, the European auxiliary navy could concentrate on the public diplomacy role of naval forces, providing anything from humanitarian assistance to the provision of medical services on goodwill tours around the world (like the U.S. Navy and the Chinese PLAN routinely do already). This auxiliary navy could also lend a hand to regional coastal and constabulary navies and coast guards (e.g. in West or East Africa) to train and exercise.

The last dedicated German hospital ship was the MS Helgoland, which saw extensive action in Saigon (South Vietnam) between 1966 and 1972. The ship was operated by the German Red Cross.
The last dedicated German hospital ship was the MS Helgoland, which saw extensive action in Saigon (South Vietnam) between 1966 and 1972. The ship was operated by the German Red Cross.

To this end, it is strictly necessary to inject some fresh thinking into how such as force could be tailored. It is imperative that an idea such as this can be put into action rather quickly before being brought to grinding snail speed by bureaucrats in Brussels or Berlin. First, one should look at the market of commercial vessels. Ro/Ro ships or offshore supply ships are available, usually even on short notice. They could be painted gray or white, manned by a mixed civilian-military crew, and quickly form the backbone of an auxiliary navy.

The Royal Navy used the Ro/Ro vessel Atlantic Conveyor in the 1982 campaign to retake the Falkland Islands from Argentina. The makeshift helicopter and Harrier carrier was sunk by Argentine forces in the course of the conflict.
The Royal Navy used the Ro/Ro vessel Atlantic Conveyor in the 1982 campaign to retake the Falkland Islands from Argentina. The makeshift helicopter and Harrier carrier was sunk by Argentine forces in the course of the conflict.

Other opportunities arise as well. The offshore patrol vessel L’Adroit (P725) is a demonstrator vessel built by French shipbuilder DCNS and was placed at the disposal of the French Navy for three years, a period that is now drawing to a close. The ship could be introduced as a French contribution to the auxiliary navy, which need not limit itself to state-run ships. If done properly, NGOs like SOS Mediterranee could be integrated (the non-profit organization operates the MS Aquarius, a former German fishery protection vessel). The former rescue cruiser Minden, built in 1985 and serviced by volunteers from the German Maritime Search and Rescue Service, will join what is already emerging as a multinational, civilian, and military task force in the Mediterranean.

The former SAR cruiser Minden, for thirty years operated in the North Sea and Baltic Sea by an NGO, will soon begin rescue operations in the Mediterranean.
The former SAR cruiser Minden, for thirty years operated in the North Sea and Baltic Sea by an NGO, will soon begin rescue operations in the Mediterranean.

In the medium term, one could consider the charter of vessels which could be converted quickly as dedicated hospital ships, also crewed by civilian mariners and military. A logistics ship would also come in handy, as well as a simplistic command platform. To provide range, ships taken up from trade (not such a novel concept after all) could be selected if they provide the opportunity to operate reconnaissance drones or helicopters. In the long term, there are even further ideas that could be floated. For example, the 2016 German federal budget has earmarked the procurement of three new patrol vessels for the Bundespolizei See, Germany’s quasi Coast Guard. It is entirely plausible that these ships could also be detached as part of the EU’s auxiliary fleet, akin to NATO’s SNMGs – that is, if Germany politically resolves its constitutional conflict between police and military jurisdiction and respective responsibilities. To go even further, the German Navy is currently in the early stages of procuring the future multi-role combat ship MKS180, designed as a modular warship. Is it too far-fetched to consider adding a civilian variant, a MKS180CIV, for the auxiliary “Great EU White Fleet”?

The German Navy's next project: Multi-role combat ships MKS180 (artist conception).
The German Navy’s next project: Multi-role combat ships MKS180 (artist conception).

To be clear: Such an auxiliary navy would have to be organized, trained, and equipped properly. This requires financial and political investments. The task force, more of a 10-ship navy than a 100- or even 1000-ship navy, would provide a vision for European cooperation. EU or United Nations mandates would be desirable. It appears that it is also a much more sensible road leading to further defense and security cooperation than political soap-box oratories about the need for a European army could ever do. Politically and operationally, it could provide Berlin with a sense of regaining some degree of initiative when it comes to maritime security.

Sebastian Bruns directs the Center for Naval Strategy and Security at the Institute for Security Policy, University of Kiel (Germany). He is the editor of “The Routledge Handbook of Naval Strategy and Security” (Routledge: London 2016). 

Asia-Pacific, Capability Analysis

Distributed Lethality: China is Doing it Right

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Distributed Lethality Topic Week

By Alan Cummings

Distributed lethality is about “increasing individual warship lethality and then combining surface warships in innovative ways.” We can add some 21st Century flair to the details, but the premise remains the essence of warships since time immemorial: go to sea and kill your enemy. Frankly, the U.S. Navy’s (USN’s) surface fleet is playing catch-up after the post-Cold War/ low-naval-threats era of the 1990s and 2000s. The fact that we needed to verify the value of capable warships with “a rigorous program of analytics” and numerous war games seems a poignant expression of the tactical and bureaucratic disconnect in the past decades. So for now, check out China and the People’s Liberation Army (Navy) (PLA(N)) if you want an example of Distributed Lethality in action.

The PLA(N) began building modern warships in the 1990s when they laid the keels for their first Luhu, Luhai, and Jiangwei-class vessels. Those vessels and every class of surface combatant since have counted anti-ship cruise missiles (ASCMs) as their primary armament. Which is to say they were each deadly in the anti-surface warfare (ASuW) arena from day one. Ironically, as China was ramping up production of lethal surface combatants, the U.S. was ramping down. The last Arleigh Burke to incorporate the RGM-84 HARPOON (USS Porter, DDG 78) slid off the blocks in 1997 and every U.S. destroyer built since has been oriented around air defense. What little ASuW capability these later destroyers have is reliant on firing an SM-2 missile designed for air warfare in a secondary ASuW mode.

Fast forward to 2015, and you have two comparisons of the USN and PLA(N)- first by tonnage, then by strike-mile lethality.

Chart 1
USN vs PLA(N) Surface Combatants by Tonnage
chae
USN vs PLA(N) Surface Combatants by ASuW Strike-Mile

As you can see, the USN may have the edge in tonnage but the PLA(N) takes the prize for lethality. It turns out the PLA(N) also has more hulls- which means their tonnage and armament are more, wait for it, distributed.  Granted, a lot of that distribution resides in their Houbei PTGs. But if you’re focused on regional sea control, say like the South China Sea and Western Pacific, then those low-cost/high-lethality combatants are the perfect thing to disperse across contested locations, key transit areas, and chokepoints.

Today’s bottom line is that the PLA(N) can field more ASCMs and a wider variety of platforms than the USN. For most of the PLA(N), that lethality comes in the form of a warship with at least four YJ-83s, each delivering a 419-lbs warhead up to 100NM (some vessels have ASCMs with even longer ranges, like the YJ-18 and YJ-62). This means combatants with YJ-83s can hold a 200NM-diameter circle (or 31,400NM2) at risk of lethal effects. The Spratly Islands for example claim 120,000NM2; strategic distribution of a four-ship PLA(N) surface action group (SAG) gives ASCM coverage to 125,600NM2.  Raising the hull count or employing multiple SAGs makes the situation all the more frightening. Cue these vessels with rough targeting data (a.k.a. maritime domain awareness) from a Fiery Cross-based patrol aircraft and the PLA(N) has a full-blown system of distributed lethality.

Holding short of a war at sea, PLA(N) combatants are the muscle behind China’s maritime presence and influence operations. PLA General Zhang Zhaozhong implied this in early 2013, calling it a “cabbage strategy” to surround contested maritime claims (like Second Thomas Shoal) with layers of civilian, government, and military vessels. Then in 2014, PLA(N) vessels helped escort the Haiyang Shiyou 981 drilling rig in 2014 despite Chinese statements to the contrary. Talk about “combining surface warships in innovative ways,” China is using them as part of a layered politico-military offense to advance their maritime claims, one that easily transitions to combat operations if things deteriorate.

Implementing distributed lethality requires sound doctrine and a practiced C2 structure. That’s where the USN carries the advantage (for now) while we implement expedients like the modified TLAM and SM-6. However, much of our doctrine is either available via open source research or may have been compromised by cyber warfare. For example, the majority of our own textbook on “Surface Tactics 101” is available via a quick Google search for MTP-1D (the Multinational Maritime Tactical Signal and Maneuvering Book). Paired with the equally available NWP 3-56 Composite Warfare Doctrine, and five minutes of Google research has provided the fundamentals of distributed tactics.

Whether the PLA(N) has incorporated U.S. C2 doctrine or developed a native system is likely hidden in classified reporting. However, we can look at broader open source examples to evaluate how practiced they are at operating warships together. For instance, rehearsals of combat resupply demonstrate coordination amongst combatants and the entire logistics train. Recent exercises with Russia, Australia, and the U.S.  illustrate that the PLA(N) has become a capable partner for live fire exercises, amphibious landings, and maneuvering drills amongst other evolutions. I was once told that the key to combat at sea is showing up to the right location, on time, with weapons and radios that work (which may have been borrowed from someone else). I believe that is a valid definition, particularly in the context of distributed lethality, and one that the PLA(N) appears to be meeting.

If one is inclined to dismiss exercises and drills as liable to heavy scripting, then the PLA(N)’s blue water deployments show their C2 abilities are no fluke. These complicated operations (and the C2 required for them) are one snapshot in an evolution of PLA(N) doctrine that runs concurrent with their progress in warship technology. Even the larger Chinese defense organization is adapting to facilitate coordinated operations. Two of the five newly inaugurated theater commands will likely be tasked with maritime-centric missions in the East and South China Seas. More important than today’s snapshot, these trends indicate where China wants to take their C2 ability tomorrow. So what do these strategic moves mean for distributed tactics? If China has the C2 infrastructure, logistics support, and trust in its commanders to operate independently around the world then it stands to reason they can operate together in China’s near abroad.

Which brings up my last point on distributed lethality in the PLA(N): they win by implementing it locally. Warships from China’s East Sea Fleet at Ningbo need to cover 400NM to be in the disputed Senkaku Islands, while South Sea Fleet ships from Zhanjiang are 700NM from the Spratly Islands. PLA(N) vessels can cycle through combat patrols, maintenance periods, training evolutions, and resupply hops in 1/3 the distance a U.S. destroyer covers transiting from San Diego to Hawaii. Meanwhile, the USN still needs the missiles, variety of hulls (small, medium, and large combatants), and regional partners to make distributed lethality work in the Asia Pacific. China need only cast off lines.

Tactics come down to your ability to shoot, move, and communicate. Most of the USN surface fleet can move and communicate around the world, but can’t authoritatively prosecute a surface engagement. The PLA(N) is working on the skills to communicate in a coordinated attack, but they can move with ease in their near seas and they designed their surface combatants as shooters from the beginning. Both sides have identified where they are and where they want to go as far as tactical capability (which, for good or ill, seems to be similar places). So which challenge is easier- learning C2, or refitting and retraining a fleet? I guess the race is on.

Alan Cummings commissioned from Jacksonville University in 2007 and served as a Surface Warfare Officer in the USN until 2013. The opinions here are his own and do not represent the position of the U.S. government. Some material used here is drawn from research being considered for publication elsewhere. Original data is available via valid requests submitted to [email protected].

Asia-Pacific

Publication Release: Chinese Military Strategy Week

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Released: February 2016

The CIMSEC Chinese Military Strategy topic week ran from August 3-7, 2015 and featured shortly after a new Chinese Military Strategy white paper was released in May 2015, and after a new U.S. National Military Strategy was released in July 2015. Authors sought to identify key takeaways from the new Chinese white paper, establish historical context, and several compared the new Chinese document to the American strategy. 

Authors:Screenshot_1
Paul Pryce
Sherman Xiaogang Lai
Chad M. Pillai 
Jack McKechnie
Jan Stockbruegger
Chang Ching
Eric Gomez
Debalina Ghoshal
Amanda Conklin
Justin Chock
Xunchao Zhang

Editors:
Eric Murphy
Dmitry Filipoff
Matt Hipple
Matt Merighi
John Stryker

Download Here

Articles:
The Influence of Han Feizi on  China’s Defence Policy By Paul Pryce
From Expediency to the Strategic Chinese Dream? By Sherman Xiaogang Lai
Where You Stand Depends on Where You Sit: U.S. & Chinese Strategic Views By Daniel Hartnett
Bear, Dragon & Eagle: Russian, Chinese & U.S. Military Strategies By Chad M. Pillai
Avoiding Conditions for an Asia-Pacific Cold War By Jack McKechnie
Beyond the Security Dilemma? De-Escalating Tension in the South China Sea By Jan Stockbruegger
A Grain of Contextual Salt in the Chinese Military Strategy By Chang Ching
Deep Accomodation: The Best Option for Preventing War in the Taiwan Strait By Eric Gomez
Assessing China’s Nuclear Ambitions By Debalina Ghoshal
The Unnamed Protagonist in China’s Maritime Objectives By Amanda Conklin
A Pacific Rebalance with Chinese Characteristics By Justin Chock
Becoming a Maritime Power? The First Chinese base in the Indian Ocean? By Xunchao Zhang

Be sure to browse other compendiums in the publications tab, and feel free send compendium ideas to [email protected].

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Asia-Pacific, Territorial and Law of the Sea Disputes

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line: Finale

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By Alex Calvo

This is the fifth installment in a five-part series summarizing and commenting the 5 December 2014 US Department of State “Limits in the Seas” issue explaining the different ways in which one may interpret Chinese maritime claims in the South China Sea. It is a long-standing US policy to try to get China to frame her maritime claims in terms of UNCLOS. Read part one, part two, part three, part four. 

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Whereas the assertion that China has not actually made a claim may not be shared by everybody, in particular given the language flowing from Beijing which the DOS report itself cites, the reference to the “high seas” between mainland China and some islands seems stronger proof that Beijing was not making a historic claim. However, we must again stress that this would be the case if we followed the prevailing interpretation of the law of the sea, but there is no reason why China should adhere strictly to it, and even less that Beijing should not have changed her mind since 1958, when she had little more than a coastal navy and her economy was closed and in tatters. It may be true, as the report notes, that the 1958 Declaration only made a historic claim to the Bohai (Pohai) gulf in northeastern China, but again this should perhaps be judged from a wider historical perspective. After 1949 the PRC took a much more uncompromising stance concerning its North-East than its South-East (and wider maritime) borders. With a pragmatic arrangement in place with the United Kingdom concerning Hong Kong, and a strong economic and political relation with the Soviet Union, it was at the other end of the country where, in 1950, Beijing (not without an intense internal debate given the state of the country), decided to resort to force to prevent the presence of hostile forces close to her border, intervening in the Korean War, pushing back the advancing Allied forces and reversing the impact of the Inchon landing, ultimately forcing a stalemate on the ground. In 1958, just five years after the Korean armistice, nearby waters may have thus been much more present in Chinese leaders’ minds. In addition, these were also the waters directly leading to Tianjin and Beijing, the venue for foreign interventions in both the Opium Wars and the Taiping Rebellion. It would not be until the late 1970s that China’s South-Eastern flank would begin to receive more attention, in part thanks to the rapprochement with the United States and in particular once economic growth and the country’s move to become a net energy and commodity importer turned the waters of the South China Sea into a vital venue and potential choke point. It is true that in December 1941 the loss of HMS Prince of Wales and HMS Repulse in the South China Sea had enabled the Japanese to land in Malaya and ultimately conquer Burma, closing the last land route to besieged Nationalist China, but this did not result in a comparable imprint on China’s historical consciousness, among other reasons because the episode did not involve Chinese naval forces and was subsumed into a much larger, dramatic, and quickly-developing picture.

Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.
Vietnamese-Americans demonstrating against Chinese claims in the South China Sea. Note the banner in favor of US ratification of UNCLOS.

Rejecting the validity of a possible historic claim by China. Concerning whether, if China “Made a Historic Claim”, it would “have Validity”, the DOS paper insists that “such a claim would be contrary to international law”, stressing the limited degree to which UNCLOS recognizes this category of claims, as evidenced by its “text and drafting history”. The text argues that “apart from a narrow category of near-shore ‘historic’ bays” in Article 10, and “historic title” concerning “territorial sea boundary delimitation (Article 15)”, “modern international law of the sea does not recognize history as the basis for maritime jurisdiction”, citing the Gulf of Maine ICJ case. It also underlines the fact that UNCLOS provisions concerning the EEZ, continental shelf, and the high seas “do not contain any exceptions for historic claims” to the detriment of coastal states and all estates enjoying certain freedoms. Concerning fisheries, the report acknowledges that UNCLOS refers to “the need to minimize economic dislocation in States whose nationals have habitually fished” in the EEZ (Article 62(3)) and to “traditional fishing rights and other legitimate activities” (Article 51), but restricts the impact to the possible granting by one state to another of fisheries resources “based on prior usage”. The text stresses that no such traditional fishing practices can “provide a basis for sovereignty, sovereignty rights, or jurisdiction,” adding that UNCLOS rules on oil and gas development contain no “exception for historic rights in any context.” Again we note how a purely legal report like this may be missing part of the picture, given the great importance that fishing vessels have in the ongoing conflict over the South China Sea, where they are one of the pillars of asymmetric naval warfare.

Chinese scholars Gao and Jia have argued that UNCLOS does not regulate “historic title” and “historic rights,” which fall instead under the purview of general international law. In their view, UNCLOS “was never intended, even at the time of its adoption, to exhaust international law. On the contrary, it has provided ample room for customary law to develop and to fill in the gaps that the Convention itself was unable to fill in 1982” as clear from its preamble, which reads “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The DOS report explicitly rejects this position, saying that “it is not supported by international law” and goes against the “comprehensive scope of the LOS Convention.” Experts like Mark Valencia, on the other hand, hold that China’s posture may be compatible with the international law of the sea.

The text does not stop at arguing that it is not open to a state to make historic claims based not on UNCLOS but on general international law, laying down a second line of defense. It explains that, “even assuming that a Chinese historic claim in the South China Sea were governed by ‘general international law’ rather than the Convention,” it would still be invalid since it would not meet the necessary requirements under general international law, namely “open, notorious, and effective exercise of authority over the South China Sea,” plus “continuous exercise of authority” in those waters and “acquiescence by foreign States” in such exercise of authority. Furthermore, it explains that the United States, which “is active in protesting historic claims around the world that it deems excessive,” has not protested “the dashed line on these grounds, because it does not believe that such a claim has been made by China,” with Washington choosing instead to request a clarification of the claim. Whether this view is also meant to avoid a frontal clash with Beijing, in line with the often state policy goal of “managing” rather than “containing” China’s rise, is something not discussed in the text.

The report concludes by criticizing another view put forward by Gao and Jia, namely the relevance of claims made before the advent of UNCLOS. While these two scholars argue that “In the case of the South China Sea as enclosed by the nine-dash line, China’s historic title and rights, which preceded the advent of UNCLOS by many years, have a continuing role to play,” the DOS paper says that “The fact that China’s claims predate the LOS Convention does not provide a basis under the Convention or international law for derogating from the LOS Convention,” adding that “permitting States to derogate from the provisions of the Convention because their claims pre-date its adoption is contrary to and would undermine” the convention’s “object and purpose” stated in its preamble to “settle … all issues relating to the law of the sea.”

Conclusions. Long-standing American policy towards China stresses the need to manage the latter’s rise, so that it does not threaten the post-Second World War system, based among others on freedom of navigation and a ban on territorial expansion as a legitimate causus belli. As a result, Washington has often called on Beijing to clarify her claims on the South China Sea, in an attempt to constrain them while avoiding a frontal clash. This position also seeks to reinforce the perception that the United States focuses on the rule of law at sea, rather than on supporting one claimant against the other over disputed waters. The DOS document, in line with this approach, carefully dissects Chinese claims, analyzing whether they may be compatible with standard American interpretations of international Law of the Sea. The conclusions are rather pessimistic, exposing how, despite having ratified UNCLOS, the Convention’s provisions are not seen in the same light by Beijing and Washington. This should not surprise us, since international law seeks to constrain power but at the same time it is shaped by it, thus as countries rise they seek to play a greater role in the fate of rules and principles. In the case of China this is even clearer due to historical perceptions that it was to a large extent seaborne power which subjected the country to a semi-colonial status for a whole century. If Beijing’s claims in the South Chinese Sea cannot be seen in the light of UNCLOS, the question arises what ultimate Chinese goals are. Could this be the subject of a future paper by the Department of State? Or does Washington prefer to wait until the international arbitration case launched by Manila concludes? While the second option seems more likely, as time goes by the idea that China’s rise may be shaped, rather than constrained, increasingly seems less and less realistic. However, if the time comes to draw a line in the sand, a whole of government effort will be needed, going beyond the naval circles that to date have been most vocal in articulating the need to resist Chinese expansion.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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