Category Archives: Territorial and Law of the Sea Disputes

United Nations Convention on the Law of the Sea, International Maritime Organization, and international maritime law.

Territorial and Law of the Sea Disputes

Hainan’s Maritime Militia: All Hands on Deck for Sovereignty Pt. 3

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By Conor M. Kennedy and Andrew S. Erickson

Part I and II of this conclusion to our series on Hainan’s maritime militia discussed the Hainan Provincial Military District (MD) leadership’s approach to constructing maritime militia forces in response to national militia guidelines and how they address challenges during construction efforts. This final installment in our series offers a glimpse into what the Hainan MD’s efforts have yielded in force scale. It also examines the incentivizes motivating the builders of this force, such as political drivers and pressures confronting local officials. The conclusion also outlines issues meriting further observation and analysis, such as the significance of the Sansha Maritime Militia force for China’s third sea force more broadly, and the degree to which Chinese officials frame related efforts as part of a “People’s War.”

Although this series has discussed in depth four key locations for maritime militia development, they are part of a far broader effort by the entire Hainan MD. The maritime militia units of Sanya, Danzhou, Tanmen, and Sansha should not be seen in isolation, but rather as elements of the Hainan MD militia force system. Directed by national militia construction guidelines and a highly publicized visit by paramount leader Xi Jinping to the Tanmen Maritime Militia, every other county in Hainan Province has established singular or multiple maritime militia units. These include districts of the provincial capital Haikou and many other directly administered and autonomous counties. Additional noteworthy maritime militia units are located in Lingshui County, Chengmai County, Changjiang Li Autonomous County, Wanning City, and Dongfang City. While our research to date has not revealed them to be on the same level of the four leading units in the totality of their documented capabilities or achievements, they nonetheless merit further examination. Dongfang and Wanning Cities’ maritime militia, for example, participated in defense of China’s HYSY-981 oil rig alongside the better-known Sanya and Tanmen maritime militia units.

Below is a map depicting all of the 31 maritime militia units under the Hainan MD jurisdiction identified as we conducted research for this series.

While local conditions produce considerable variety in unit scale and type, one can notionally estimate the total number of personnel and vessels in Hainan’s maritime militia force by assuming that the 31 units displayed are the rough median size of a militia company. Most maritime militia units, often referred to using tactical-level unit organization terms such as “fendui” (分队) or “company” (连), may comprise around 120 personnel and 10 vessels. This would yield a hypothetical total of 3,720 personnel and 310 vessels in Hainan’s maritime militia force. Such estimation is admittedly imprecise: Chinese organizational terms often lack both alignment with Western equivalents and consistency with regard to precise status and numerical size. As Kenneth Allen and Jana Allen explain, “Different Chinese and English dictionaries translate fendui (分队) as subunit, detachment, element, or battery…Although fendui refers specifically to battalions, companies, platoons, and sometimes squads, which together comprise the grassroots level (基层), a fendui can also refer to an ad hoc grouping of personnel organized for a particular function.” Moreover, characteristics specific to China’s maritime militia may accentuate organizational and numerical variation: some units lack vessels organic to the unit and rely on the requisitioning of civilian vessels for training and missions. Other detachments vary in size from 70 to over 300 personnel. Units also vary considerably in capability. Sansha City’s new maritime militia fleet, for instance, is vastly superior to the Chengmai County Maritime Militia Company.   

The overall distribution of Hainan’s maritime militia force reflects the militia-building responsibility given to each locality as contained in the commonly invoked guidance that “provinces build battalions, cities build fendui, and counties build companies” (省建大队、市建分队、县建中队). While Hainan Province lacks a battalion-level unit and adherence to this formulation is less than exact, its various cities and counties have all established maritime militia fendui or companies. Required by the Hainan MD, every single Hainanese coastal city and county with a harbor has established its own maritime militia force.  

Incentivizing Cadres

As documented throughout this series, China’s civilian and military leaders find strategic and operational advantages in the maritime militia, and have made use of these forces at sea. While key cities and counties with marine economies are sufficiently robust to support capable maritime militia forces, other localities with far less potential to form an elite maritime militia are nevertheless developing their own units. Other factors may also be driving this buildup. While this series has already surveyed the carefully-calibrated incentives available to maritime militia personnel for their services, it has not yet directly addressed the motivation of local officials involved in building the militia. This is ever-more critical: local civilian and military officials represent the key force in building the militia, which do not organize autonomously. This section will therefore consider the role of provincial politics and bureaucrats’ incentives in maritime militia building.

There is an obvious political dynamic involved in militia building, harking back to China’s radical past when revolutionary zeal constituted a criterion for cadres’ selection or promotion. To further their Party careers, local officials naturally embrace and support major political campaigns and policies. As China pursues regional predominance in maritime power militarily and economically, major national resources are being lavished on coastal provinces and their maritime forces. China is also actively working to boost the population’s maritime consciousness through a variety of measures, including by cultivating and publicly praising maritime militia leaders and their units. Hainan MD Commander Zhang Jian and Political Commissar Liu Xin wrote that leaders of People’s Armed Forces Departments (PAFD) should strive to be “rights protection commanders and political commissars,” and government leaders should serve as “rights protection secretaries or mayors.” Cadre evaluation, according to Zhang, rewards those who take the initiative in upholding China’s claimed maritime rights, suggesting increased opportunities for career advancement by local officials thus dedicated. Such grassroots forces are also intended to spread maritime awareness and consciousness among the masses, forming a component of national defense education on maritime affairs conducted by local People’s Liberation Army (PLA) Commands.  

Success in maritime militia work can help local officials impress their superiors, potentially facilitating advancement. Numerous accolades are accorded governments, institutions, enterprises, units and individuals that contribute exceptionally to national defense efforts. Sansha City recently garnered national attention when it was designated a “National Double-Support Model City” in recognition of its exceptional assistance to the military, with which the Sansha Maritime Militia cooperates. The famous Tanmen Maritime Militia Company, which received a visit from President Xi Jinping in 2013 on the first anniversary of the Scarborough Shoal Incident, had previously earned numerous plaudits from the PLA for its persistent sea service. Having recently garnered multiple awards for its armed forces work, Lingshui County has made major progress in developing its maritime militia force. Reflecting such success, nine civilian armed forces cadres who worked with the militia have since risen to township deputy mayor and deputy party secretary positions, suggesting opportunities for career mobility through militia work.  

Numerous reports celebrate the diligence of the Lingshui County PAFD Political Commissar Colonel Xing Jincheng on building up the maritime militia under his authority. After transferring to the Lingshui PAFD from his position as deputy political commissar of a PLA regiment, Colonel Xing expressed an unwillingness to relax in an easy “reserves” job. Dismissing suggestions that he rest after a long career, and ride out his final posting on Hainan’s scenic southern coast, Xing is lionized for instead devoting great energy to enforcing strict discipline in the PAFD staff and in building the Lingshui Maritime Militia. Extensive media coverage of Xing puts his efforts in the context of the latest PLA reforms; and the growing mission role of maritime rights protection, extending down to even grassroots PAFDs.  

Other reports indicate that local government officials must fulfill their responsibilities in supporting national defense mobilization work as a key function of their position or else risk losing their jobs. For example, an article in the November 2016 issue of China’s Militia featuring Guangxi Autonomous Region’s efforts in this respect included an unattributed quote referencing military work by local civilian government and Party leaders: “[those] who don’t stress the importance of and cannot grasp armed forces work are incompetent and derelict in their duties.” The article then explains how Guangxi Party and government officials have increased their maritime militia force in response to the growing mission of rights protection in the South China Sea. China has raised Military-Civilian Fusion to the level of national strategy, as documented in the 2013 doctrinal volume Science of Military Strategy. As a result, officials in coastal provinces can be subject to performance metrics in construction of “maritime mobilization forces” (such as maritime militia) when considered for career advancement.

October 2016: Sansha Maritime Militia in the Paracels prepare to conduct a joint patrol with troops of the Sansha PLA Garrison (Wen Wei Po).

A Patriotic Employment Release Valve

The reduction in PLA Army personnel by 300,000 announced in September 2015 will likely exacerbate the growing number of PLA veterans who feel neglected by China’s government and society. Recent protests in Beijing by veterans groups highlight the fact that provincial MDs and governments are ill-prepared to deal with the newly demobilized troops that are currently or will soon be deprived of their previous employment. PAFDs are the front-line military departments that handle veteran’s affairs and work to reintegrate veterans into society. Responsible for organizing and managing local militia units, the thousands of county PAFDs across China can easily funnel these veterans into various militia units, affording these former soldiers a new chance to serve in leadership positions among the militia force. Indeed, news coverage of Lingshui County states more and more demobilized veterans are entering the maritime militia, becoming “the ‘vanguard’ in maritime rights protection.” The Hainan MD thus occupies advantageous terrain for converting demobilized PLA troops into a new grassroots force for furthering Chinese maritime claims in the South China Sea.

The Sansha Maritime Militia fleet exemplifies this new trend. Our installment on this unit documented how this new “state-run militia fishing fleet” functions primarily as a force for maritime rights protection. A break from the more traditional mode of maritime militia construction, as exemplified by the Tanmen Maritime Militia, this new fleet is manned by professional mariners, law enforcement, and PLA veterans who earn substantial salaries regardless of fishing catch performance. Chinese sources anticipated correctly that most of this fleet’s 84 vessels would be delivered by the end of 2016. In December 2015, the Guangzhou Taicheng Shipbuilding Industry Co. Ltd. featured one such vessel on its website, whose interior it furnished as a subcontractor following its construction by Xijiang Shipyard. The accompanying description stated that the vessel had a “weapons and equipment room” (武备库) and an “ammunition store” (弹药库). Open sources reveal this vessel, Qiongsanshayu 000212, to be part of the new fleet of Sansha Maritime Militia vessels delivered to the state-run Sansha City Fisheries Development Company, which operate under the guise of fishing. Details available in other open sources, some of which show the Sansha Maritime Militia training to load “light weapons” onto the deck of these new vessels, help confirm the intended roles and identities of this new militia fleet.

Openly available AIS data has identified all of the 84 Sansha Maritime Militia vessels operating in the South China Sea. Intermittent AIS transmissions (available via the website Marine Traffic) indicate that at least seven different Sansha Maritime Militia vessels were present at Scarborough Shoal at varying times, and 17 more vessels observed at Mischief Reef. While vessels may transmit AIS signals when operating singularly or in small groups, maritime militia vessels most likely move in larger groups: the Sansha Maritime Militia fleet comprises six companies, which generally operate as units. Openly available satellite imagery (e.g., from Google) also shows such vessel groups moored at Mischief and Subi reefs. In September 2016, the Philippine Ministry of Defense released photos of Sansha’s maritime militia vessels at Scarborough Shoal. Despite Philippine statements in October 2016 that PRC ships had left the shoal, AIS data reveal that Sansha Maritime Militia and CCG vessels were present there as recently as February to mid-April 2017. As this report went to press, AIS data and satellite images confirmed the presence of Sansha Maritime Militia vessels at Scarborough Shoal, Fiery Cross Reef, Mischief Reef, and Subi Reef.    

7 September 2016: The Philippines released photos showing two Sansha Maritime Militia vessels present at Scarborough Shoal.
A Google Earth image dated 30 April 2016 shows a Sansha Maritime Militia vessel alongside a China Coast Guard cutter at the recently built wharf at Subi Reef.

Sansha City Fisheries Development Company, the commercial name for its state-run militia fleet, was established quietly with little mention in the PRC press. This contrasted markedly with the often widespread fanfare and in-depth reporting on even minor economic achievements by Sansha City and Hainan’s marine economy. After all, local officials have every incentive to promote their advancement by trumpeting economic development, a key performance metric—unless instructed otherwise for information security reasons. The rapid construction of this militia fleet since its establishment in February 2015 raises the prospect of China replicating this new model of maritime militia building elsewhere, perhaps in the East China Sea. As part of any Chinese effort to prepare for East China Sea operations, one might imagine an analog to the Sansha Maritime Militia in another archipelagic municipality, such as Zhejiang Province’s Zhoushan City. It is clear that China has not abandoned the standard model of building the maritime militia out of existing commercial fishing and shipping fleets. However, the combined pressures of a commercial shipbuilding slump, large numbers of unemployed veterans reentering civil society, and benefits to political and military careers in local officials may make the Sansha Maritime Militia model attractive to other provinces.

With numerous projects and investments, Hainan Province is striving to become a global tourism destination. Major influxes of Chinese and foreign tourists toting smartphones and digital cameras make the Hainan MD’s task of ensuring security and secrecy in its military facilities increasingly arduous. Sanya City, for instance, is not only a popular vacation destination but also contains the Yulin Naval Base, a leading home for China’s secretive ballistic-missile submarine force. One of the militia’s missions is the security of important infrastructure and operations such as key ports or coastal patrols. Militia personnel also reportedly perform security functions to protect military facilities and national defense construction projects.

Finally, an additional security function of Hainan’s advanced maritime militia units is escorting China’s growing fleet of research vessels that perform hydrographic and geologic surveys. We introduced one example in our installment on Sanya’s maritime militia: the Sanya Fugang Fisheries Co. Ltd.’s 30-day escort mission for China National Offshore Oil Corporation’s April 2013 exploration in the Zhongjiannan basin south of Triton Island. This was the location of the HYSY-981 oil rig incident a year later. In another example, the Guangzhou Marine Geological Survey Office stated on its website in an undated article that “for years, our office has hired fishing vessels as escorts during every seismic and drilling operation for the protection of underwater cables and to ensure the smooth and safe progress of operations.” U.S. Naval War College professor Ryan Martinson has made public some of the most recent escort operations conducted by fishing vessels for PRC survey vessels. While the extent of the Hainan Maritime Militia’s continued involvement in these escort operations remains unclear, it appears to be a growing mission for China’s maritime militia overall and worthy of additional research.      

Conclusion: People’s War Turns Seaward

This series has surveyed only a small portion of China’s total maritime militia force, the world’s largest. Part 1 examined national militia development guidelines and how they were translated by Hainan Province during its recent spate of maritime militia construction. Part 2 explored challenges confronting Hainan Province in its development of maritime militia forces and some of the solutions introduced to address them. Hainan Province is a key maritime frontier province, charged with administering all of Beijing’s expansive South China Sea claims. Yet Hainan as a province and military district does not build its maritime militia in isolation. It is, rather, one of many coastal provinces that raise such forces. In fact, other more economically and technologically advanced provinces—such as Guangdong and Zhejiang—possess greater socioeconomic bases on which to develop larger-scale, more technically sophisticated maritime militia units. Provinces construct militia forces in response to national militia guidelines under a dual-responsibility system between government/Party and PLA leaders. The resulting maritime militia fleets are thus made available to operate alongside the PLA Navy (PLAN), China Coast Guard, as well as other provinces’ maritime militia forces. Case in point: China’s defense of its HYSY-981 oil rig in 2014. PLA senior colonel and Professor Jiao Zhili of the Nanjing Army Command College’s National Defense Mobilization Department described the event as mobilization for military struggle: “during the ‘981’ offshore platform’s struggle with Vietnam in the South China Sea, the emergency mobilization of militia from Hainan, Guangdong, and Guangxi to the front lines on the perimeter was a major strategic deterrent for Vietnam.” The mobilization orders for this event originated in the former Guangzhou Military Region, now the Southern Theater Command. While maritime militia units are raised and directed by individual provinces, they fulfill roles within a grander regional military structure.

These forces are often discussed by outside observers in reference to China’s gray zone operations, while Chinese authors often invoke the tradition of People’s War when discussing the militia. The study of these irregular maritime forces begs the question of whether we are witnessing a form of “Maritime People’s War.” In Chinese strategic thought, People’s War is regarded as the mixed use of regular and irregular forces in peacetime (and wartime if necessary) to overcome a superior adversary (or multiple adversaries) through the adroit use of various tactics, deceit, and protraction. The PLA continues to uphold the core concept of People’s War, adapting and evolving specific elements of the strategy to suit modern strategic and operational needs. China’s 2006 Defense White Paper, for instance, states that the PLAN is “exploring the strategy and tactics of maritime people’s war under modern conditions.” As current strategic considerations call for prioritizing the enhancement of China’s maritime defenses, the PLA is likely expanding the operational space of People’s War to cover Chinese maritime claims to the maximum extent feasible.

For China’s provinces, the MD system is described as the “practical application of people’s war thought in the military system” and an important channel through which civilian-military integration efforts are implemented. Hainan MD Commander Zhang Jian also describes the missions of the Hainan MD’s maritime militia in terms of a Maritime People’s War. He advocates “us[ing] maritime people’s war as a means to declare sovereignty, participate in development, cooperate with law enforcement, and support combat operations.” Zhang outlined how the maritime militia will conduct missions within joint military-law enforcement-civilian defense operations, essentially making combined use of the main forces of the PLA services and the local forces of the provinces. Such amalgamation is a defining feature of People’s War. The incidents this series has explored illustrate the multifarious tools that China utilizes in order to seize tactical advantages envisioned in traditional concepts of People’s War. Provinces and their local forces undoubtedly comprise the fundamental elements of People’s War, and remarks by Chinese officials like State Councilor and Defense Minister General Chang Wanquan’s in August 2016 suggest official endorsement of such strategies. This raises questions beyond the scope of this series that require further research, particularly in reconciling China’s continued national tradition of militia building with the realities of modern warfare. This topic is certainly not absent from debate in China, as analysts wrestle with the adaptation and evolution of People’s War to suit supporting roles for the PLA of today. As China adapts a time-honored concept to serve growing maritime security interests, the maritime militia is proving critical to its operationalization.

At the very least, this series demonstrates the widespread local mandate for maritime militia building in Chinese provinces such as Hainan. Maritime militia building is directed by official policy in China’s coastal provinces. Most coastal counties and cities raise and sustain their own maritime militia units according to the scale of their respective marine economies. While the Chinese government may not often admit openly and outwardly to using its maritime militia forces to support its objectives at sea, the voices of key stakeholders inside China and the central guidance passed down to the provinces reveal much about plans to construct and use these forces. Regardless of how these forces are characterized, provinces use them to protect China’s claimed maritime rights and interests and to support an increasingly blue-water-capable PLAN by dispatching greater numbers of militia personnel away from their shorelines to increase China’s strategic depth at sea.

Numerous PLA authorities, including Commander Zhang Jian, articulate the value the presence of fishing vessels has in all of waters claimed by China to demonstrate sovereignty and protect maritime rights and interests. Deputy Director Xu Kui of the National Defense University’s National Defense Mobilization Research Department explains how the maritime militia is a key force under China’s new “military strategic guideline” of preparing for maritime military struggle, and that it must “maintain a regular presence in disputed waters.” Echoing others, Xu cites the longstanding success of the Tanmen Maritime Militia in preserving Chinese presence in the Spratlys. The Tanmen Maritime Militia offers living testimony to how even a single township or county can impact the status quo in maritime East Asia. This consideration is not lost on China’s leaders, and Hainan’s leading maritime militia units represent prime examples of the diverse avenues of force that Chinese provinces can develop and contribute in the service of overall national maritime ambitions.

For all these reasons, Hainan’s maritime militia—both the bulk of its forces overall and the elite vanguard units probed deeply in this series—will remain a key component of China’s statecraft and security efforts the South China Sea: as a standing, front-line force, with its leading units celebrated as models for others to emulate.

Conor Kennedy is a research associate in the China Maritime Studies Institute at the U.S. Naval War College in Newport, Rhode Island. He received his MA at the Johns Hopkins University – Nanjing University Center for Chinese and American Studies.

Dr. Andrew S. Erickson is a Professor of Strategy in, and a core founding member of, the U.S. Naval War College’s China Maritime Studies Institute. He serves on the Naval War College Review’s Editorial Board. He is an Associate in Research at Harvard University’s John King Fairbank Center for Chinese Studies and an expert contributor to the Wall Street Journal’s China Real Time Report. In 2013, while deployed in the Pacific as a Regional Security Education Program scholar aboard USS Nimitz, he delivered twenty-five hours of presentations. Erickson is the author of Chinese Anti-Ship Ballistic Missile Development (Jamestown Foundation, 2013). He received his Ph.D. from Princeton University. Erickson blogs at www.andrewerickson.com and www.chinasignpost.com. The views expressed here are Erickson’s alone and do not represent the policies or estimates of the U.S. Navy or any other organization of the U.S. government.

Featured Image: February 2017: Head of the Lingshui County PAFD Colonel Xing Jincheng, in plain clothes, speaks to the maritime militia under his command (CCTV News).

Asia-Pacific, Territorial and Law of the Sea Disputes

China: Connected Strategic Themes Across Contested Global Commons Pt. 1

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Are there connected Chinese strategic themes that cut across the contested and interlinked global commons (domains) of maritime, space, and cyberspace? If so, what are they and what could the United States do about them?

By Tuan N. Pham

Last November, I wrote an article titled “China’s Maritime Strategy on the Horizon” highlighting a fleeting strategic opportunity for Washington to shape and influence Beijing’s looming and evolving maritime strategy. I posited that Chinese maritime strategists have long called for a maritime strategy; China’s maritime activities are driven by its strategic vision of the ocean as “blue economic space and blue territory” crucial for its national development, security, and status; and Beijing may be trying to fill domestic legal gaps that it sees as hindering its ability to defend territorial claims in the South China Sea (SCS) and East China Sea (ECS), and justify its growing activities in international waters. The latter point is underscored by recent media reports from Beijing considering the revision of its 1984 Maritime Traffic Safety Law, which would allow Chinese authorities to bar some foreign ships from passing through Chinese territorial waters. If passed, this will be another instance of China shaping domestic maritime laws to support its developing and evolving maritime strategy, and part of a larger continuing effort to set its own terms for international legal disputes that Beijing expects will grow as its maritime reach expands.

I then further suggested that Beijing’s forthcoming maritime strategy will shape its comportment and actions in the maritime domain in the near- and far-term, and perhaps extend into the other contested global commons of space and cyberspace as well. In Part 1 of this two-part series, I explore this potential cross-domain nexus by examining the latest Chinese space white paper and cyberspace strategies. In Part 2, I will derive possibly connected strategic themes that cut across the interlinked global commons and discuss how the United States could best respond.   

China’s Space Activities in 2016 White Paper (December 2016)

“To explore the vast cosmos, develop the space industry, and build China into a space power is a dream we pursue unremittingly.”

On December 27, 2016, China’s Information Office of the State Council published its fourth white paper on space titled “China’s Space Activities in 2016.” The paper and the preceding 2011, 2006, and 2000 papers largely follow a pattern of release, sequenced and synchronized with the governmental cycle of Five-Year Plans that are fundamental to Chinese centralized planning. Last year’s paper provides the customary summary of China’s space accomplishments over the past five years and a roadmap of key activities and milestones for the next five years.

Since the white paper was the first one issued under President Xi Jinping, it is not surprising that the purpose, vision, and principles therein are expressed in terms of his world view and aspiration to realize the Chinese Dream of national rejuvenation. Therefore, one should read beyond the altruistic language and examine the paper through the realpolitik lens of the purpose and role of space to the Chinese Dream; the vision of space power as it relates to the Chinese Dream; and principles through which space will play a part in fulfilling the Chinese Dream. Notable areas to consider include Beijing’s intent to provide basic global positioning services to countries along the Silk Road Economic Belt and 21st-Century Maritime Silk Road in 2018; construction of the Belt and Road Initiative Space Information Corridor; strengthening bilateral and multilateral cooperation that serves the Belt and Road Initiative; and attaching the importance of space cooperation under the Brazil, Russia, India, China, and South Africa (BRICS) cooperation mechanism and within the framework of the Shanghai Cooperation Organization (SCO).

Although the white paper is largely framed in terms of China’s civilian space program, the People’s Liberation Army (PLA) is subtly present throughout the paper in the euphemism of “national security.” The three references in the purpose, vision, and major tasks deliberately understate (or obfuscate) Beijing’s strategic intent to use its rapidly growing space program (largely military space) to transform itself into a military, economic, and technological power. In short, China’s space program does not have structures in place that make meaningful separation between military and civil programs, and those technologies and systems developed for supposedly civil purposes can also be applied–and often are–for military purposes.

The white paper highlights concerted efforts to examine extant international laws and develop accompanying national laws to better govern its expanding space program and better regulate its increasing space-related activities. Beijing intends to review, and where necessary, update treaties and reframe international legal principles to accommodate the ever-changing strategic, operational, and tactical landscapes. All in all, China wants to leverage the international legal framework and accepted norms of behavior to advance its national interests in space without constraining or hindering its own freedom of action in the future where the balance of space power may prove more favorable.

China’s National Cyberspace Security Strategy (December 2016)

“China will devote itself to safeguarding the nation’s interests in sovereignty, security, and development in cyberspace.”

On the same day as the issuance of the “China’s Space Activities in 2016” white paper, the Cyberspace Administration of China also released Beijing’s first cyberspace strategy titled “National Cyberspace Security Strategy” to endorse China’s positions and proposals on cyberspace development and security and serve as a roadmap for future cyberspace security activity. The strategy aims to build China into a cyberspace power while promoting an orderly, secure, and open cyberspace, and more importantly, defending its national sovereignty in cyberspace.

The strategy interestingly characterizes cybersecurity as “the nation’s new territory for sovereignty;” highlights as one of its key principles “no infringement of sovereignty in cyberspace will be tolerated;” and states intent to “resolutely defend sovereignty in cyberspace” as a strategic task. All of which reaffirm Xi’s previous statement on the importance of cyberspace sovereignty. At last year’s World Internet Conference in Wuzhen, Xi boldly exclaimed, “We should respect the right of individual countries to independently choose their own path of cyberspace development, model of cyberspace regulation and Internet public policies, and participate in international cyberspace governance on an equal footing.”

Attendees listen to a speech by China’s President Xi Jinping shown on a screen during the opening ceremony of the third annual World Internet Conference in Wuzhen town of Jiaxing, Zhejiang province, China November 16, 2016. (Reuters/Aly Song)

Both the space white paper and cyberspace security strategy reflect Xi’s world view and aspiration to realize the Chinese Dream. The latter’s preamble calls out the strategy as an “important guarantee to realize the Two Centenaries struggle objective and realize the Chinese Dream of the great rejuvenation of the Chinese nation.” Therefore, like the white paper, one should also read beyond the noble sentiments of global interests, global peace and development, and global security, and examine the strategy through the underlying context of the Chinese Dream. What is the purpose and role of cyberspace to national rejuvenation; the vision of cyberspace power as it relates to national rejuvenation; and through which principles will cyberspace play a role in fulfilling national rejuvenation? Promoting the construction of the Belt and Road Initiative, raising the international telecommunications interconnection and interaction levels, paving a smooth Information Silk Road, and strengthening the construction of the Chinese online culture are some notable areas to consider.  

The role of the PLA is likewise carefully understated (or obfuscated) throughout the strategy in the euphemism of “national security.” The 13 references in the introduction, objectives, principles, and strategic tasks quietly underscore the PLA’s imperatives to protect itself (and the nation) against harmful cyberspace attacks and intrusions from state and non-state actors and to extend the law of armed conflict into cyberspace to manage increasing international competition – both of which acknowledge cyberspace as a battlespace that must be contested and defended.   

The strategy also puts high importance on international and domestic legal structures, standards, and norms. Beijing wants to leverage the existing international legal framework and accepted norms of behavior to develop accompanying national laws to advance its national interests in cyberspace without constraining or hindering its own freedom of action in the future where the balance of cyberspace power may become more favorable.

China’s International Strategy for Cyberspace Cooperation (March 2017)

“Cyberspace is the common space of activities for mankind. The future of cyberspace should be in the hands of all countries. Countries should step up communications, broaden consensus and deepen cooperation to jointly build a community of shared future in cyberspace.”

On March 1, 2017, the Foreign Ministry and State Internet Information Office issued Beijing’s second cyberspace strategy titled “International Strategy for Cyberspace Cooperation.” The aim of the strategy is to build a community of shared future in cyberspace, notably one that is based on peace, sovereignty, shared governance, and shared benefits. The strategic goals of China’s participation in international cyberspace cooperation include safeguarding China’s national sovereignty, security, and interests in cyberspace; securing the orderly flow of information on the Internet; improving global connectivity; maintaining peace, security, and stability in cyberspace; enhancing international rule of law in cyberspace; promoting the global development of the digital economy; and deepening cultural exchange and mutual learning.

The strategy builds on the previously released cyberspace security strategy and trumpets the familiar refrains of national rejuvenation (Chinese Dream); global interests, peace and development, and security; and development of national laws to advance China’s national interests in cyberspace. Special attention was again given to the contentious concept of cyberspace sovereignty in support of national security and social stability – “No country should pursue cyberspace hegemony, interfere in other countries’ internal affairs, or engage in, condone or support cyberspace activities that undermine other countries’ national security.” The strategy also interestingly calls for the demilitarization of cyberspace just like the white paper does for space despite China’s growing offensive cyberspace and counterspace capabilities and capacities – “The tendency of militarization and deterrence buildup in cyberspace is not conducive to international security and strategic mutual trust – China always adheres to the principle of the use of outer space for peaceful purposes, and opposes the weaponization of or an arms race in outer space.” Incongruously, a paragraph after discouraging cyberspace militarization, the strategy states that China will “expedite the development of a cyber force and enhance capabilities in terms of situational awareness, cyber defense, supporting state activities, and participating in international cooperation, to prevent major cyber crises, safeguard cyberspace security, and maintain national security and social stability.”

Conclusion

This concludes the short discourse on the latest Chinese space white paper and cyberspace strategies and sets the conditions for further discussion. Part 2 examines possibly connected strategic themes that cut across the contested and interlinked global commons of maritime, space, and cyberspace, and strategic opportunities for the United States. Read Part 2 here.

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

Featured Image: June 3, 2013. Assembly of the Shenzhou-10 spacecraft and the Long March-2F carrier rocket at Jiuquan Satellite Launch Center in Jiuquan, northwest China’s Gansu Province. (Xinhua/Liang Jie) 

Territorial and Law of the Sea Disputes

Lessons from the Arctic for the South China Sea

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By Daniel Thomassen 

Introduction

The maritime region centered on the South China Sea has been a vital international trade route and reservoir of natural resources throughout modern history. Today, its importance cannot be understated: half the volume of global shipping transits the area, competition for energy and fishing rights is intensifying between surrounding nations (with growing populations), commercial interests are increasing, and regional military spending increases lead the world. Rivalry over resources and security has triggered disputes about sovereignty and historical rights. China has used its increasing relative power to aggressively claim sovereign rights over two-thirds of the South China Sea within the so called “Nine-Dash Line.” Overlapping claims by the Philippines, Vietnam, Malaysia, Brunei, and Taiwan are being dismissed and have sometimes resulted in armed confrontations. Furthermore, the construction of artificial islands and significant military installations on reefs and rocks is underpinning Chinese sea control ambitions within the “First Island Chain.” This deteriorating security environment threatens regional stability, adherence to international law, and the freedom of the seas. Furthermore, it has the potential to escalate into conflict far beyond the levels of militarization and skirmishes between fishing fleets, coastguards and navies seen so far.

The U.S. has been deeply involved in the creation and management of the East-Asian state system since World War II, contributing to its economic progress and security arrangements, which include alliances with the Philippines, Japan and South Korea. Thus, the regional interests of the United States include freedom of navigation, unimpeded lawful commerce, relations with important partners and allies, peaceful resolution of disputes, and the recognition of maritime rights in conformity with international norms and law (with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) in particular).1 These principles are universally applicable and must be upheld every time and everywhere to be respected. Regional countries are now reconsidering the relevance and commitment of the balancing power of the U.S. in light of Beijing’s dismissal of American concerns and bilateral initiatives towards its smaller neighbors. 

The Arctic region similarly holds the potential for great power rivalry, but in contrast offers a good example of peaceful settlement and compromise. The diminishing ice cap is causing a growing emphasis on resources, international waterways, and commercial activity in the Arctic, where there are also competing claims and great power security interests represented. However, the Arctic nations have chosen to cooperate with regards to responsible stewardship and use UNCLOS and supplementing treaties as the legal basis. The cooperative framework is constituted by the Arctic Council, the agreed adherence to international law and arbitration tribunals, bilateral and multilateral treaties, demilitarized zones, Incident at Sea agreements, joint fisheries commissions, as well as the power balance between Russia and the NATO alliance. As a result, although there is potential for competition and diverging national interests, mutually beneficial compromises and diplomatic solutions to maintain stability and predictability are preferred.

Arctic Dispute and Resolution

Currently there are overlapping claims from Russia and Denmark for the seabed under the North Pole (Lomonosov and Alpha-Mendeleyev Ridges) under consideration by the Commission on the Limits of the Continental Shelf, and Canada is preparing another competing claim. These claims can further be used as a basis for bilateral agreements on maritime delimitations.  This was the case between Norway and Russia in 2010, and there are prospects of a similar agreement between Russia and Denmark. Such cooperative mechanisms, institutions and shared principles in the Arctic are far more robust than comparable efforts in the Southeast Asia, such as ASEAN or the “Declaration on the Conduct of Parties in the South China Sea.”

A map of claims on the Arctic seafloor. (Durham University)

The Svalbard Treaty of 1920 set a standard for international governance, and was a bold and forward looking concept when introduced almost 100 years ago.2 The archipelago was discovered by Dutch explorers in 1596, and resources were since extracted by Holland, England, Russia, and Scandinavians. Eventually, the major powers voluntarily conceded sovereignty over the islands to the young Norwegian state through a commission related to the Paris Peace Conference after World War I. The Treaty allows visa-free access for citizens of signatory states, equal rights to extract natural resources, freedom to conduct scientific activities, ensures environmental protection, and prohibits permanent military installations. This agreement exemplifies the feasibility of imposing restrictions on sovereign authority, the accommodation of the interests of the parties, and adherence to non-discrimination principles.

Episodes of Confrontation

Much like the South China Sea, there have been clashes between the coastal states in the Arctic. Between 1958-1961 and in 1976, there was a state of armed conflict and diplomatic breakdown between the United Kingdom and Iceland over fishing rights. 3 The Royal Navy escorted British fishing vessels to confront the Icelandic Coast Guard in the contested zone. Shots were fired, ships were rammed and seized, and fishing gear was cut loose from the ships in heated skirmishes. However, on both occasions it was the stronger power that stood down to the weaker, as Britain finally recognized Iceland’s right to protect its resources after significant international diplomacy that included the forming of UNCLOS.

Icelandic patrol ship ICGV Óðinn and British frigate HMS Scylla clash in the North Atlantic in 1973. (Wikimedia Commons)

Other minor events in the Arctic include the 1993 Loophole dispute between Norway and Iceland, 4 and Hans Island, the only unsolved territorial dispute, which is under negotiation between Canada and Denmark. 5 The successful diplomatic de-escalation of these cases is in stark contrast to the clashes between China and its rivals in events like the 2012 Scarborough Shoal standoff, 6 the 1995 occupation of Mischief Reef in the Spratlys, the 1988 battle over the Spratly Islands, the 1976 grab of the Paracel Islands, 7 and of course the blunt Chinese dismissal of the 2016 ruling from the International Arbitration Court against the legitimacy of the Nine-Dash Line claim. 8

China has mostly shown an uncompromising attitude in the South China Sea since the 1970s, without serious U.S.-led international efforts to check its use of force. But China too has occasionally demonstrated its willingness to forward claims to international arbitration bodies, such as its 2012 submission to the Commission on the Limits of the Continental Shelf regarding the East China Sea.9 However, that effort must be viewed in context of the ongoing efforts at the time to be accepted as observer in the Arctic Council.

Applying Arctic Lessons

The recent row between the Chinese and the U.S. Navy over an Unmanned Underwater Vehicle is symptomatic of the evolving problem, which must be addressed by the new administration in the White House. The South China Sea currently constitutes the primary global hotspot where major and regional powers’ vital interests and alliance commitments directly clash. A framework to manage this region must be negotiated by the two superpowers primarily and supported by the other involved nations. It requires the will to compromise and the pursuit of mutual interests while looking forward – a set-up which could benefit from the indicated transactional policy approach of President Trump. Any long-term solution would have to accommodate legitimate Chinese demands for security and resources. But, the U.S. must commit strongly by dedicating all available instruments of power (diplomatic, information, military, and economic measures) to impose negative consequences unless China is willing to negotiate from its strong position. Furthermore, the U.S. must uphold the same standards and make concessions itself.

It must therefore expediently ratify UNCLOS10 with its international tribunals and vow to respect the treaties that must be created to regulate sovereignty, demilitarization, commercial rights and responsibilities to protect fish stocks and the environment. Chinese concerns about the “One China Policy,” American forward basing, and policy on the Korean peninsula must also be on the table, as well as cooperation on regional trade agreements.

While state security can be achieved in the South China Sea through treaties, demilitarization, power balance and predictability, the conditions for prosperity flow from similar efforts. As demonstrated in the Arctic, good order at sea and responsible stewardship encourages investments and lay the foundation for cooperative ventures that are mutually beneficial. Uncontested sovereignty and fair trade regulations are incentives for developing expensive infrastructure necessary for harvesting resources under the seabed. The inevitable link connecting China and the U.S. is the economic dependency between the two largest economies in the world. So far, they have both unsuccessfully introduced regional free trade initiatives in order to create beneficial terms for themselves such as the Regional Comprehensive Economic Partnership agreement and the Trans Pacific Partnership respectively. 11 An obvious flaw with these proposals is that they have excluded the opposite superpower. Since both countries are indispensable trading partners to most others, a cooperative effort to create trade agreements would benefit both and could not be ignored.

Although unresolved sovereignty issues in the South China Sea make it a tough case, there is a model to study and lessons to be learned in the cooperative management of the Arctic region (as well as the 1959 Antarctic Treaty and the 1936 Montreux Convention). However, controlling the impulses of a great power to dominate its surroundings requires a massive international diplomatic effort, creating alternative mutually beneficial conditions and a proper balancing of military power. Active U.S. presence and regional capability is fundamental to maintaining a balance and influencing the shaping of a cooperative environment. But first and foremost, there is a requirement for building trust and confidence through long term commitment to international cooperation, predictability and clear intentions. For a start, the good examples from the Arctic have been shared with China, Japan, India, the Republic of Korea and Singapore – all of which are involved or have vital interests in the South China Sea dispute – since they became observer states to the Arctic Council in 2013. Likewise, the U.S. can also benefit from its experience as an Arctic nation, and from the insight gained from holding the chairmanship of the Arctic Council since 2015. Moving forward, the Arctic offers successful governance lessons that can be applied to the South China Sea in order to maintain stability and ensure prosperity for all.

Daniel Thomassen is a Commander (senior grade) in the Royal Norwegian Navy. He is a Surface Warfare Officer serving as Commanding Officer of HNoMS Fridtjof Nansen (FFGH). He is a graduate of the Royal Norwegian Naval Academy (2002), U.S. Naval War College (2015), and holds an MA in International Relations from Salve Regina University (2015).

References

1. Jeffrey Bader, Kenneth Lieberthal, Michael McDevitt, “Keeping the South China Sea in Perspective”, Brookings, August 2014 https://www.brookings.edu/wp-content/uploads/2016/06/south-china-sea-perspective-bader-lieberthal-mcdevitt.pdf

2. Wallis, Arnold, Numminen, Scotcher and Bailes, “The Spitsbergen Treaty – Multilateral Governance In The Arctic”, Alliance of Liberals and Democrats for Europe/Applied International Law Network, Arctic Papers Vol. 1, 2011 https://dianawallis.org.uk/en/page/spitsbergen-treaty-booklet-lauched

3. The Ultimate History Project, “A Serious Joke: Britain and Iceland Go to War”, http://www.ultimatehistoryproject.com/cod-war-britain-and-iceland-go-to-war-over-fishing.html

4. Thorir Gudmundsson, “Cod War on the High Seas – Norwegian-Icelandic Dispute Over Loophole Fishing in the Barents Sea”, Nordic Journal of International Law, 64: 557-573, 1995

5. Jeremy Bender, “2 countries have been fighting over an uninhabited island by leaving each other bottles of alcohol for over 3 decades,” Business Insider, 10. January 2016 http://www.businessinsider.com/canada-and-denmark-whiskey-war-over-hans-island-2016-1?r=US&IR=T&IR=T

6. Jane Perlez, “Philippines and China Ease Tensions in Rift at Sea”, The New York Times, 18. June 2012 http://www.nytimes.com/2012/06/19/world/asia/beijing-and-manila-ease-tensions-in-south-china-sea.html

7. “Military Clashes in the South China Sea” http://www.globalsecurity.org/military/world/war/spratly-clash.htm

8. Matikas Santos, “Key points of arbitral tribunal’s verdict on PH-China dispute”, Inquirer, 12. July 2016 https://globalnation.inquirer.net/140947/key-points-arbitral-tribunal-decision-verdict-award-philippines-china-maritime-dispute-unclos-arbitration-spratly-islands-scarborough#ixzz4UQUrV9m3 

9. Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea http://www.un.org/depts/los/clcs_new/submissions_files/chn63_12/executive%20summary_EN.pdf

10. Eliot L. Engel and James G. Stavridis, “The United States Should Ratify The Law Of The Sea Convention”, The Huffington Post, 11. July 2016 http://www.huffingtonpost.com/rep-eliot-engel/the-united-states-should_b_10930236.html

11. Lauren O’Neil, “Trade In Asia: The Liberalization Agenda – Where To From Here?”, Forbes, 13. December 2016

Featured Image: The Canadian Coast guard’s medium icebreaker Henry Larsen is seen in Allen Bay during Operation Nanook, in Nunavut on Aug. 25, 2010. (Sean Kilpatrick/Canadian Press)

Territorial and Law of the Sea Disputes

China’s Reactions to the Arbitration Ruling Will Lead It Into Battles It Won’t Win, Part II

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Part I examined the military implications of China’s continued “military” actions versus Japan in the East China Sea or the United States and other countries in the South China Sea if China were to establish an ADIZ. Part II examines whether China has real economic or trade leverage to force other countries, including the United States, to support its point of view regarding the ruling. Part II also analyzes the related question of whether there are costs to China from continuing to ignore the legal ruling and ways in which China can be legally compelled to comply.

By Mark E. Rosen 

Embargoes and Sanctions

Shortly after the Tribunal ruling, China’s Deputy Minister of Trade was careful to encourage Chinese citizens to not boycott the U.S. and the Philippines; however, that does not mean that sanctions and boycotts are off the table. Bloomberg reported on August 4th that China will likely resume trade retaliation tactics against South Korea for its decision to deploy U.S. THAAD missiles to counter North Korean missile launches. Korea’s International Trade Association has identified 26 measures currently in place to restrict trade and is expecting more non-tariff barriers such as bogus safety inspections of inbound products, establishment of new licensing requirements, and manipulation of quarantine and safety inspections to frustrate Korean imports.   

The above actions are not unprecedented. In 2000, China banned all imports of South Korean mobile phones and polyethylene in retaliation for Seoul’s increase of duties on Chinese Garlic. In 2010, Chinese Customs Officials halted the shipments of rare earth minerals destined for Japan (for user in hybrid cars, wind turbines and guided missiles) as a form of protest for detention of a Chinese fisherman fishing near the Senkakus. The United States has also been victimized by China’s extensive unfair trade practices (dumping and illegal subsidies), theft of intellectual property, and hacking of U.S. companies. Working within the WTO system, the U.S. has filed a record number of suits versus China in the WTO on behalf of U.S. poultry producers and is now considering the unilateral institution of a total ban on Chinese steel imports because of illegal price fixing and other illegal actions by Chinese steel producers.  

The use of non-tariff barriers has been a favorite ploy by countries to sneakily frustrate imports to protect local producers while at the same time staying compliant with WTO rules. As for embargoes, WTO (Art 21) recognizes that states can impose measured national security, health, and welfare controls on both exports and imports to protect their citizens’ “essential security interests” or to prevent the proliferation of weapons. Using this exception, China passed a new national security law in 2015 which required foreign technology companies to be “secure and controllable” by Chinese National Security Agencies as a way of pushing out foreign technology firms like Microsoft, Apple, and Cisco in favor of local suppliers. However, there are limits to this type of activity, as witnessed in the 1998 Shrimp Turtle Decision in which a WTO Panel found that a U.S. ban on shrimp from India, Malaysia, Thailand and Pakistan (because those states shrimp fishermen had allegedly killed Sea Turtles) was illegal because controls can only be used to immediately protect one’s own citizens from harm. Controls cannot be used to “send signals” or indirectly pressure an exporting state to reform.

In the short term, China has considerable legal room to maneuver should it wish to impose national security controls or erect non-tariff barriers to punish Japan, the United States, the Philippines, and others for opposing them in maritime disputes. WTO cases are very time consuming to document and litigate. However, that same legal maneuver space can also be exploited by the United States and others to frustrate Chinese imports. Therefore, China should do the math and assess whether they have more to gain or lose by instituting de facto embargoes.  

In 2015, China amassed a $365 billion merchandise trade surplus with the United States. Chinese businesses have put this cash to good use by investing in new plants and equipment, educating its young people abroad, and investing billions in the U.S. and other safe offshore markets. This is not unique to the U.S.; China has a global trade surplus of $600 billion.  It continues to have small trade deficits with Japan and South Korea and its principal imports are electrical and industrial machinery (no. 1 and 3), oil (no. 2), and ores (no. 4). This cursory analysis of China’s economy overwhelmingly demonstrates that China is highly dependent on international trade to fuel its economy. China’s offshore investments of its U.S. trade surplus helps China  diversity its holdings outside of Asia. China is also heavily reliant on international suppliers for the raw materials it lacks and risks a great deal by starting a trade war in which it is deprived access to the U.S. and other foreign markets.

History confirms that China would likely suffer more than the U.S. or Japan, Australia, and the Philippines as a result of an embargo. Tough Allied embargoes against Nazi Germany and Italy proved ineffective when self-interest among allied business interests caused the embargoes to leak or, in the case of Germany, forced innovation when Germany developed synthetic substitutes for oil and other commodities. When the U.S. embargoed wheat exports to the USSR in 1973, Canada and Australia picked up the business. The latter is especially important in the current situation. If China were to stop buying Australian ore or Japanese finished products, the world economy is sufficiently diverse to compensate for some of these losses. After the U.S. embargoed exports of scrap iron, steel, and oil to Japan and froze Japan’s assets, Japan was put into the position of having to choose between fighting for additional raw materials or abandoning their plans for a “New Order” in Asia. It is unlikely that any country would launch a Pearl Harbor attack if China were to embargo their products; however, embargoes have a high potential for “blowback” and could result in unintended consequences to the PRC’s overseas businesses, mines, and industrial operations.      

It is also fiction that the U.S. is vulnerable to Chinese action because of its stake in the U.S. public debt (20% foreign owned). In reality, China buys U.S. sovereign debt because it is safe, liquid and can be used by China to finance dollar denominated international transactions (such as oil). China’s central bank also buys U.S. sovereign debt to maintain the exchange rates for renminbi and help drive down the costs of Chinese exports. Also, U.S. sovereign debt is overwhelmingly held by U.S. domestic entities (66%); such that were China to dump its nearly $1 trillion in U.S. debt, that debt will simply be purchased by domestic and foreign purchasers – as happened in August 2015 when China reduced its U.S. debt holdings by $180 billion.  For China, the impact of “a broad scale dump of U.S Treasuries…would be that China would actually export fewer goods to the United States.”  

Sanctions and embargos tend to “leak” because the global market will almost always produce another supplier or purchaser of something that is being withheld from the international market. Philippine bananas and mangos also taste good in Tokyo, Paris, and New York. Given China’s extreme dependence on international trade to fuel its domestic growth and overseas investment, it would be almost suicidal for China to engage in actions that might restrict its access to foreign markets. Likewise, a government-lead boycott of foreign products would, apart from the legal repercussions, would have extremely destructive impacts on its economy since it still relies heavily on imports of agricultural products, industrial equipment (from mostly Japan and Korea), and metal ores for  manufacturing applications. Finally, dumping U.S. debt might cause some angst but, in the long run, U.S. debt instruments would be purchased by investors in the U.S. and other countries.

Continued Trashing of the Tribunal Decision and International Law in General

China continues to condemn the Tribunal ruling. The traditional attacks focused on questions of lack of jurisdiction and “overstepping” its legal mandate. Another Chinese daily’s reported that the Tribunal was a “front” for the United States and “lackey” of outside forces and had an inherent bias because the Philippines paid the “court costs” for the proceeding. A few speculated that China might withdraw from UNCLOS, but China will more likely establish its own arbitral panel to adjudicate the territorial disputes outside of UNCLOS. This later course of action has precedent; recall China’s 2015 establishment of an Asian Infrastructure Bank to finance Asian infrastructure projects outside of the regulation-burdened World Bank system.   

China seems to labor under the perception that the Tribunal Ruling is purely a regional matter and that its impacts end with the states bordering the SCS. China continues to ignore that many countries take the ruling very seriously because the SCS is a maritime superhighway between the Middle East, South Asia, East Africa, North Asia, and Australia. Roughly 60 percent of South Korea’s energy supplies, nearly 60 percent of Japan’s and Taiwan’s energy supplies, and 80 percent of China’s crude oil imports come through the South China Sea. According to a 2015 report from the Council of Foreign Relations:

“Each year, $5.3 trillion of trade passes through the South China Sea; U.S. trade accounts for $1.2 trillion of this total. Should a crisis occur, the diversion of cargo ships to other routes would harm regional economies as a result of an increase in insurance rates and longer transits.”

Money talks. For this reason, states that would ordinarily have been silent registered their support for the Tribunal decision. The EU issued a statement on July 15, underscoring their support for a rules-based order and respect for UNCLOS. The G-7 called on states to “fully implement decisions binding on them in … tribunals under the Convention.” Canada, France, Germany, the UK, Japan, Vietnam, Singapore and the U.S. issued statements support of the ruling. Indonesia, India, South Korea issued more “measured” statements urging China to show restraint and respect for UNCLOS.  

There were some dissenters, but much of the industrial world supported the outcome and expects China to comply. If China continues to signal that it has no interest in conforming to the ruling, China could be excluded from important international negotiations, including, for example, the upcoming negotiation of an agreement under UNCLOS that deals with biodiversity beyond national EEZs. As I suggested in After The South China Sea Arbitration, China could have its privileges essentially suspended in three UNCLOS institutions: (1) the International Tribunal for the Law of the Sea (ITLOS); (2) the International Seabed Authority (ISA), and the (3) the Commissions on the Limits of the Continental Shelf (CLCS).

If China continues its island-building activities and interferes with Philippine fishing in the vicinity of Second Thomas Shoal, Scarborough Shoal, and Mischief Reef, an international court such as the International Court of Justice (ICJ) or ITLOS, could be asked to impose sanctions on the China for flaunting a lawful UNCLOS decision. The case would be predicated on the notion that China cannot take advantage of the benefits of UNCLOS if it lives outside of the law. In practical terms, an injunction could be sought which: recalls China’s judge on ITLOS; blocks the CLCS from any further proceedings involving the Continental Shelf entitlements of China; and lastly suspends both China’s ability to file further deep-seabed mining applications before the ISA and enjoin any further prospecting of its sites in the Indian Ocean. It might also be appropriate for a Tribunal to suspend China’s participation in UNCLOS related bodies including the International Seabed Authority (ISBA) (which writes the regulations for deep seabed mining), the International Hydrographic Organization (IHO) (the charting and oceanography body) and the International Maritime Organization (IMO). The latter action would be especially harmful for China given that the IMO has broad responsibilities to write the rules for merchant ship design, construction, operations, and navigational routes/practices while China has one of the largest merchant marine fleets in the world. 

A meeting of the International Maritime Organization IMO Photo
A meeting of the International Maritime Organization (IMO Photo)

These legal maneuvers would be slow to orchestrate but, like other types of sanctions, could be far-reaching and difficult to reverse once they are put in place. However, China’s continued island reclamation after the ruling, their recent military actions in the vicinity of Scarborough Shoal, and the Chinese Supreme Court’s reaffirmation of the 2012 fishing ban are in direct contravention of the Tribunal’s decision. Since the effects of China’s actions have impacts beyond the Philippines, almost any bordering state,  international organization, or possibly  NGO would have standing to seek to have the Tribunal’s decision enforced since the ICJ (and for that matter ITLOS) has “inherent jurisdiction…to ensure that its exercise of jurisdiction is not frustrated and that its basic judicial functions are safeguarded.”

Conclusion

Inexorably, China is painting itself into a corner in which its escape options become more limited. While it was hoped by officials in the U.S. and elsewhere that China would eventually come to the realization that it needed to capitalize on the favorable aspects of the ruling and “pivot” on those it did not like, that is not happening. The recent military displays in the ECS and SCS, the threatened sanctions towards South Korea, and continued “trashing” of the Tribunal ruling suggest that China is opting for confrontation versus conciliation and now runs the risk of becoming involved in a major military conflict with Japan and perhaps the United States. China says that it is committed to a rules-based order and leadership in Asia but its recent actions say otherwise. Lastly, and perhaps most importantly, pursuit of high risk strategies which could place China’s international trading relations at risk is antithetical to the Chinese Community Party’s 13th Five Year Plan for 2016-2020 to promote balanced international trade, inbound investment, and free trade zones.   

It is entirely possible that China’s leadership does not fully appreciate the dangerous choices their countrymen are making and how their actions are being perceived on the world stage. Military-to-military encounters at sea are occurring on a daily basis, and the potential for a costly misstep increases with each passing day. So too, a miscalculation in the trade or economic arena would likely backfire since China is a trading nation and it can ill afford to have its products excluded from foreign markets. High-level diplomacy and cool heads should be the order of the day.  

A maritime and international lawyer, Mark E. Rosen is the SVP and General Counsel of CNA and holds an adjunct faculty appointment at George Washington School of Law.   The views expressed in this paper are those of the author alone and do not represent the views of CNA or any of its sponsors.   

Featured Image: Triple-E class container ship “Madison Maersk” of Maersk Line loaded with containers is berthed at Nansha port in Guangzhou. (Reuters)