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Law of Warfare

Rules of Engagement and Undersea Incursions: Reacting to Foreign Submarines in Territorial Waters

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This article is part of a series that will explore the use and legal issues surrounding military zones employed during peace and war to control the entry, exit, and activities of forces operating in these zones. These works build on the previous Maritime Operational Zones Manual published by the Stockton Center for International Law predecessor’s, the International Law Department, of the U.S. Naval War College. A new Maritime Operational Zones Manual is forthcoming.

By LtCol Brent Stricker

“We have attacked, fired upon, and dropped depth charges on a submarine operating in defensive sea area.”–USS Ward (DD-139) December 7, 1941, Pearl Harbor, Hawaii.

Submerged foreign submarines in a nation’s territorial sea pose a unique situation that is inconsistent with the rule of innocent passage. Under certain circumstances, their concealed presence without the consent of the coastal state could be considered a threat to the territorial integrity or political independence of the coastal state. A modern submarine fulfills its peacetime mission and combat role while submerged. If the coastal state detects a submerged submarine in the territorial sea, it is faced with a dilemma on the appropriate measures that can be used to force the submarine to surface or leave the territorial sea. The recent sabotage of the Nord Stream pipeline and the vulnerability of the world’s vast subsea network of electricity and network cables highlights the danger posed by unknown submersibles.

Norway and Sweden have faced this problem for more than 50 years from suspected Soviet and later Russian submarines. Both countries have used warning shots in an attempt to signal the submerged contacts to surface or leave the area. Use of explosives in this manner, however, could be misinterpreted as an attack on the submarine. Balancing the protection of territorial sovereignty with avoiding escalation poses a predicament.

Innocent Passage

All ships, including warships, enjoy the right of innocent passage through the territorial seas of a coastal state without prior notification or consent. This rule was discussed in detail in the Corfu Channel case before becoming codified in the United Nations Convention on the Law of the Sea. The Corfu Channel is a narrow passage between Albania and the Greek island of Corfu. The United Kingdom’s Royal Navy was confronted by Albanian coastal artillery fire when transiting the channel in May 1946. In October 1946, two Royal Navy destroyers transited the channel while at action stations to be prepared to respond to coastal artillery fire or other threat posed by the Albanians. These destroyers struck naval mines laid in the channel. As a result, in November 1946, the Royal Navy conducted minesweeping operations to clear the channel.

The United Kingdom brought a case against Albania in the International Court of Justice seeking reparations for the loss of life and damages to its warships. The ICJ upheld the Royal Navy’s right of innocent passage through Albanian territorial waters, rejecting Albania’s arguments that the ships were not in innocent passage because they were sailing in formation and the sailors on board were at action stations. Rather, the Court found that sailing in formation and running at action stations were appropriate defensive measures. The Court found that the minesweeping operation was inconsistent with innocent passage and a violation of Albanian sovereignty, rejecting the British arguments that this was a measure of “self-protection.” Corfu Channel illustrates how innocent passage may include defensive measures. The case has long presented a conundrum because it determined that states are entitled to innocent passage, yet are restrained from taking defensive action, such as minesweeping, to exercise their right.  

Innocent passage is governed by the United Nations Convention on the Law of the Sea (UNCLOS). Norway and Sweden are signatories to UNCLOS, and the United States, while not a signatory, recognizes much of it as customary international law. UNCLOS codified the right of innocent passage in Articles 17-21. Innocent passage must “not be prejudicial to the peace, good order, or security of the coastal state.” A foreign vessel’s passage is not innocent if its actions constitute “any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.” A special provision for submarines, Article 20, requires submarines engaged in innocent passage to “navigate on the surface and to show their flag.”

A coastal state that discovers an unknown submerged contact in its territorial sea is faced with a dilemma. Examples from Norway and Sweden of submerged contacts lingering in their territorial waters are inconsistent with the definitions of both passage and innocent passage. The coastal state, under Article 25 of UNCLOS, may “take the necessary steps in its territorial sea to prevent passage which is not innocent.” There is no agreement on exactly what steps are deemed necessary. Furthermore, these measures are limited when applied to sovereign immune warships. Thus, while an unknown submerged contact is not exercising innocent passage, it is unclear what measures a coastal state can apply to exercise its rights under Article 25. Articles 30 and 31 of UNCLOS allow a coastal state to require the submerged contact to leave its territorial sea and places liability for any damages on the flag state of the submerged contact. Armed force against an unknown submerged contact, however, may only be used in self-defense under Article 51 of the UN Charter. In most cases, use of force would not be justified simply because the submarine is submerged or refuses to surface and the mere presence of the submarine does is not tantamount to an “armed attack.” This determination is complicated when the submerged contact’s intensions cannot be ascertained.

Norway

Norway has been dealing with suspected intrusions by foreign submarines for more than 50 years. These contacts in Norwegian fjords are difficult to track due to the mixing of fresh water runoff and salt water in the fjords which can provide cover for submarines from sonar detection. Acoustic detection is complicated by the fjord’s subsurface structure, currents, and civilian surface traffic. For two weeks in November 1972, Norwegian vessels aided by Norwegian and British aircraft attempted to locate and force to the surface an unknown underwater contact, believed to be of Soviet or Warsaw Pact origin, in the Sogne Fjord using depth charges. Hand grenades and then depth charges were used to signal to the underwater contact to surface. Ultimately, the Ministry of Defense was given permission to sink the contact if it did not surface and identify itself.

For the Norwegians to use force against the unknown submerged contact, they would need to articulate how an otherwise benign submerged vessel posed an imminent threat that would justify the use of force in self-defense. Violating Article 21 of UNCLOS in and of itself does not constitute such a threat of imminent attack, even if the submarine is engaged in an intelligence or reconnaissance mission. Such a mission may be illegal under Norway’s domestic law, but it does not imply an illegal use of force, let alone an armed attack.

In limited situations, the location and duration of the unknown submarine in territorial waters could be considered as a threat, as noted in the radio transmission of the USS Ward when it engaged an unknown submarine in a defensive sea area. The Norwegians would be more concerned by the location of the unknown submersible if it were in such an area or in close proximity to another sensitive military exercise or base. The longer the submarine remained at depth, the greater potential one might consider it laying in wait to attack. Nonetheless, the Norwegians employed an escalating use of force in 1972 with attempts to signal with hand grenades and ultimately culminating with firing anti-submarine missiles at the suspected target. The Norwegians were ultimately unable to force the contact to the surface, identify it, or sink it.

Norwegian experiences with unknown submarine contacts continued over the decades. The official Norwegian policy on the use of force remained somewhat ambiguous. In 1983, Brigadier Asbjorn V. Lerheim stated on the use of force, “It is a tough decision, it is still peacetime, and you can’t really destroy a submarine . . . it is not an attack on Norwegian soil.” Norway seems to have adopted a set of measures to escalate the use of force against these intrusions. The first measure is to signal the submarine to surface. If the submarine complies, it would be taken under escort. If not, depth charges would be dropped within 300 meters from the submarine with a two-minute interval to indicate this was a signaling measure, not an attack. If this failed to surface the submarine, Norwegian captains were authorized to attack with depth charges, but torpedoes were prohibited in the attack because of the potential of catastrophic damage to the boat and loss of the entire crew. It is speculated that the anti-submarine missiles fired in 1972 used homing devices and proximity fuses and were not a real attempt to hit the submarine.

Suspected Soviet incursions into Norwegian territorial waters continued as late as 1990. Norwegian authorities received reports of suspected submarines in the summer of 1990 at Skipton, a Norwegian bay twenty-five miles from the Russian border. The area was put under surveillance when, in November 1990, a mini-submarine was observed briefly on the surface. The sea floor was examined and a series of tracks were found that indicated a submersible crawler had been deployed. Similar tracks were discovered elsewhere in Sweden and Norway near military installations. The Soviet Northern Fleet possessed such miniature submarines at the time. It was speculated that the miniature submarine was launched from a nearby mother ship to conduct a Spetsnaz training or reconnaissance mission.

As late as 2021, Norway was subjected to an undersea intrusion by unknown submersibles. The Norwegian Institute of Marine Research operates a network of undersea sensors in northern Norway to monitor the marine environment. It can also be used to monitor submarines in the area. These sensors are interconnected by a series of fiber optic cables. In April 2021, it was discovered that 2.5 miles of fiber optic cable had been cut and stolen. Several of the sensors had been tampered with and moved. The reason for the intrusion is speculative but includes the potential for reverse engineering.

Sweden

Like Norway, Sweden has been troubled by intrusions of foreign submarines in its territorial waters for a similar period of time. Unlike Norway, Sweden has actually caught one submarine on the surface in the infamous “Whiskey on the Rocks” incident in 1981. This incident noted increased intrusions throughout the 1980s that have continued as late as the 2010s. To date, the Whiskey is the only foreign submarine caught on the surface in Swedish territorial waters.

On October 27, 1981, a Soviet Whiskey class submarine, the U-137, was found grounded on a rock in Swedish territorial waters. The Whiskey was an early Cold War diesel electric submarine, not a nuclear-powered submarine. The Swedish Navy contacted the submarine’s captain, Captain Second Rank A. M. Gushchin, who claimed a navigational error. Captain Gushchin claimed he thought he was 20 miles off the Polish coast when the collision occurred. This claim is rather dubious considering the submarine had transited submerged through a “perilous series of narrow straits infested with rocks and islands” before the grounding. The submarine’s grounding within ten kilometers of the Swedish naval base at Karlskrona while a major naval exercise was being conducted was certainly not just a coincidence brought about by a navigational error. Upon inspection, Swedish officials found no problems with the boat’s navigational equipment and noted its logbook had been altered.

The boat remained grounded for eleven days while the Swedish authorities inspected the submarine and questioned the captain. The Soviet Union responded by sending a flotilla of warships that stayed just outside Swedish waters. The Swedish Prime Minister made a shocking announcement on November 5, 1981, that the submarine was suspected of carrying nuclear weapons. The Swedish government made demands to the Soviets before releasing the submarine. However, weather intervened and Sweden released the submarine before these demands were met. The submarine was exposed to gale force winds and was listing 17 degrees. Swedish authorities were concerned that the boat’s battery acid could spill and cause a fire or release chlorine gas that could kill the crew. Swedish authorities stopped the captain’s interrogation and boat inspection, refloated the boat, and the submarine left on November 6, 1981.

Following this incident, the Swedish government released the Submarine Defense Commission Report in 1983, which detailed the history of foreign submarines intruding into Swedish waters. Prior to the Whiskey incident, and even subsequently, critics had claimed these submarine scares were an excuse to increase the Navy’s budget. The report detailed how foreign submarines entered Swedish waters typically one to two times a year in the 1970s before a dramatic increase during the 1980s. These incursions were concentrated around naval facilities such as coastal defense points, ports, sensor networks, and minefields.

The Report and increased submarine intrusions led to a change in Swedish Rules of Engagement (ROE) applicable to submarine contacts. Prior rules prohibited a commander from firing on an unknown contact without authorization from the civilian leadership. The Swedish Navy was only allowed to make contact with the submarine to identify it and escort it out of Swedish waters. The new ROE allowed the submarine to be fired upon without warning. Initially, warning shots were to be used, either through the employment of depth charges or missiles. The ROE were intended to prevent the damage or destruction of the submarine, but the ROE made a distinction on the location and behavior of the contact. If the submarine was located in Sweden’s outer waters, these are waters beyond the internal archipelago to the 12-mile limit, it would be warned and escorted out. If the submarine was found in internal waters, these are waters of Sweden’s internal archipelago, and refused to leave or proceeded further, it could be treated as hostile and force designed to damage or destroy the submarine could be used.

The Swedish ROE may have contributed to their inability to force submarines to the surface. If they employed depth charges or other devices with an eye toward avoiding damaging the detected submarines, the submarines could simply ignore these attempts. There is evidence that the Swedish ASW may have damaged a submarine. In the summer of 1988, eight pieces of unknown foreign submarine rescue equipment were recovered in the Stockholm archipelago. Similar equipment had been recovered in the 1970s and 80s.

The Swedish Navy continued to deal with foreign submarines intruding into Swedish waters throughout the 1980s. The government stopped providing statistics on these incursions in 1987. Subsequent reports have been vague in their descriptions. This may be to avoid highlighting their inability to stop or deter these incursions.

There is evidence that these incursions did occur. The Swedish Navy noted that these incursions have become more sophisticated with the use of multiple submarines, miniature submarines, and divers. The evidence for these incursions comes from sightings, sonar, and magnetic detection from Swedish sensor networks. There has also been evidence of keel marks and track marks on the sea floor similar to the Norwegian miniature submarine event noted above.

The miniature submarines may have also allowed military forces to surreptitiously land on Swedish territory. Between 3 to 6 March 1984, Swedish forces fired at swimmers on the island of Almo. The island was searched and food caches were located. The Swedes have also noted attacks on their “submarine nets, break-ins ashore, to the disruption and destruction of underwater mine lines.” In one case, they were blamed for the theft of a naval mine. Most shockingly, in 1985 fisherman pulled a drowned swimmer up in their nets. The nets had been placed illegally near a naval mine. It is presumed the diver was scouting the mine when he became entangled and drowned. The fisherman did not recover the body and abandoned their nets. When Swedish authorities investigated, the body had been cut out of the net and removed by unknown persons.

Conclusion

This historic submarine incursions remain relevant today, particularly considering heightened tensions from the Russian invasion of Ukraine and the recent application of Finland and Sweden to join the North Atlantic Treaty Organization. Much like the Norwegian fjords, the Swedish archipelago would be an area for these submarines to operate. The reasons for the incursions remain relevant today for any NATO-Russian conflict whether it be to conduct reconnaissance or the insertion of Special Forces. If there is a repeat of one of these Cold War examples such as a stranded submarine like the Whiskey, or more concerning, NATO forces hunting a submarine contact, the consequences could be manifold. First, NATO forces chasing a submarine contact trying to force it to surface might be viewed as an attack on the submarine. The use of explosives to signal a submarine might accidentally damage it or injure the crew. These signals could be misinterpreted as an attack allowing or even requiring a submarine to respond in self-defense. Second, any hostilities in territorial waters directly implicates the collective self-defense clause of Article 5 of the North Atlantic Treaty.

The conduct of Russian submarine espionage in the territorial seas of its neighbors presents one of the greatest challenges to avoiding conflict in the Baltic Sea. These incidents reveal the gap between the law of the sea and the use of force in self-defense against an armed attack. The Nordic coastal states must walk a fine line between protecting their territorial integrity and avoiding escalation of an incident that might quickly spin out of control.

LtCol Brent Stricker, U.S. Marine Corps, serves as the Director for Expeditionary Operations and as a military professor of international law at the Stockton Center for International Law, U.S. Naval War College. The views presented are those of the author and do not necessarily reflect the policy or position of the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.

Featured Image: Russian Kilo-class submarine in the English Channel. (UK Ministry of Defence photo via Wikimedia Commons)

Strategy

Maritime Order and America’s Indo-Pacific Strategy

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By Dr. Patrick M. Cronin

America as a Seapower

The United States is a “seapower” in all senses of the word. Its history, prosperity, and security are inseparable from the oceans. Even U.S. states without coastlines depend on global supply chains and markets that move primarily through the oceans.

The United States neglects its Navy at its peril. But military power must be accompanied by other types of power, both hard and soft. In his analysis of five maritime great powers, Professor Andrew Lambert explains how might and identity derive not exclusively from naval power, but also from the aptitude for using the seas cooperatively.1 The crucial distinction between seapowers and more insular continental powers is the art of perpetuating profitable economic and political ties with others. “A seapower, the ancient Greek thalassokratia,” writes Lambert, “was a state that consciously chose to create and sustain a fundamental engagement between nation and ocean, from political inclusion to the rule of law, across the entire spectrum of national life, in order to achieve great power status.”2

The oceans are not just the cradle of life, but vital arteries to tomorrow’s world centers of power. The continuous body of water that facilitates 90 percent of global trade and comprises about 72 percent of the Earth’s surface joins the United States with two major oceans and connects it to the dynamic Indo-Pacific region where the majority of twenty-first century wealth, trade, and population are concentrated.3

Because America’s peace and well-being depend on unhampered access and use of the oceans, order at sea is indispensable for U.S. global strategy and its vision of preserving and adapting a “free and open Indo-Pacific,” the Trump administration’s vision for an expanded regional policy announced during the president’s first trip to Asia.4

The post-World War II international system enshrined the idea of “freedom of the high seas” in the 1945 United Nations Charter.5 Postwar challenges to commercial and military freedom of navigation, however, demanded further protection.6

In the midst of the Cold War, both Western and Eastern blocs along with nonaligned nations came together to support the multilateral negotiations that resulted in the 1982 UN Convention on the Law of the Sea (UNCLOS). The Third United Nations Conference on the Law of the Sea does not conform with the revisionist notion that the United States imposed its rules on others.7 Instead, as Singapore Ambassador Tommy Koh, who later served as president of the conference, put it, “You will find countries allied here that you will not find working together in any other international forum, such as Mongolia and Swaziland, or Jamaica and Iraq.”8 As U.S. Ambassador John Norton Moore said, freedom of navigation is the original “common heritage” of all humankind.9 

From the signing of UNCLOS, the United States accepted all of its provisions as customary international law. The sole exception was Part XI regarding seabed exploration and mining in international waters, outside countries’ territorial waters and Exclusive Economic Zones (EEZs).10 In short, the United States helped to establish international law of the sea, and despite not ratifying UNCLOS, seeks to ensure its relevance, survival, and enforcement.

So, freedom of seas has been and remains essential for all Americans. However, maritime order is increasingly at risk and from both traditional and nontraditional threats. A critical question is whether we can sustain freedom of the seas into the future.

Rising Challenges for Maritime Order

Maritime order is a larger concept than maritime security. The maritime domain is defined as “all areas and things of, on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway including all maritime-related activities, infrastructure, people, cargo, and vessels and other conveyances.”11 Although security is the sine qua non for order, there is a symbiotic relationship between freedom of navigation on the oceans, for instance, and sustainable coastal communities where almost two-thirds of the world’s mega-cities are situated.12

There are at least four significant challenges to maritime order broadly conceived: over the international rules governing maritime behavior; from pirates, terrorists, traffickers, and other non-state actors and transnational criminal organizations; from mounting human exploitation of ocean resources; and from natural disasters and climate change. This essay focuses on the first but touches on all four risks, as a comprehensive policy for maritime order requires addressing the full panoply of challenges.

First, the seas are at risk from a growing competition over international rules and rule-making.

Revisionist major powers like Russia and China, but also regional states such as Iran and North Korea, increasingly pose challenges to traditional maritime security. Iran’s shootdown of a U.S. surveillance drone in international airspace constitutes a direct threat to freedom of navigation and overflight around the globe and could lead other aggressors to miscalculate by challenging the U.S. interpretation of international law.13 

In the Indo-Pacific, the most pressing challenge to existing maritime rules and norms is being posed by China.14 For example, China’s willful disregard of the 2016 international arbitral tribunal judgment regarding the South China Sea is a direct assault on the postwar system and UNCLOS, the so-called constitution of the oceans.15

But brushing aside awards handed down from The Hague is not the only challenge to postwar maritime order. Revisionist powers are challenging accepted rules and norms in various ways. Reckless behavior at sea that endangers other ships is a direct violation of the 1972 International Regulations for Preventing Collisions at Sea (COLREGs).16 Yet in early June 2019, a Russian destroyer deliberately endangered a U.S. guided-missile cruiser, USS Chancellorsville, an incident that occurred on the heels of an unsafe air maneuver by a Russian fighter jet against a U.S. patrol aircraft.17 Chinese ships and aircraft have periodically conducted similar dangerous maneuvers to prevent lawful U.S. freedom of navigation and overflight in maritime Asia.18

As with North Korea prior to the signing of UNCLOS, China wants to ignore the right of military freedom of navigation and overflight, as suggested by Beijing’s increasingly assertive behavior toward U.S. and other naval vessels operating peacefully within its Exclusive Economic Zone (EEZ).

The EEZ was designed by UNCLOS negotiators to grant coastal states control over resources adjacent to their coasts; it was not designed to grant sovereignty, which extends only in the 12-nautical mile territorial sea.19 Yet China has repeatedly violated this broadly accepted interpretation of UNCLOS.

From the 2001 incident in which a Chinese fighter jet collided with a U.S. EP-3 aircraft 80 miles south of Hainan Island to the more recent unlawful seizure of an unmanned underwater vehicle (UUV) 50 miles from Subic Bay in the South China Sea, to repeated harassment of Navy Military Sealift Command oceanographic and hydrographic survey vessels, China seeks to alter the rules through provocative actions.20 Admittedly, the issues involving certain types of Marine Scientific Research activities are more complicated (and UNCLOS interpretations have generally become more restrictive of some activities within a coastal nation’s EEZ). China wants it both ways: to preclude any military activities by claiming more limited rights of “peaceful navigation” not derived from UNCLOS within its EEZ, while conducting its own military maneuvers in the EEZs of other countries.21 In addition, while Beijing condemns every U.S. transit with warships, it lavishes praise on its proprietary and state-run mapping and measuring of the South China Sea and world oceans.22 

While states seeking to revise international rules at sea constitute a severe and growing threat to maritime order, there are other acute and chronic challenges.

A second source concerns non-traditional security threats from piracy, terrorism, and illegal trafficking by non-state actors, including transnational criminal syndicates.23  Illegal, Unreported, and Unregulated (IUU) Fishing alone “results in global losses in the tens of billions of dollars each year.”24 The cost and irreparable human and environmental damage of illicit trafficking in people, drugs, wildlife, and other commodities is enormous.

But there is an area where traditional and non-traditional threats such as transnational crime converge: lethal technology. Non-state actors are gaining access to more disruptive and deadly technologies. Acting either alone or as proxies of states, they are likely to pose increased risks to maritime shipping, navigation and overflight. The Houthi rebels who allegedly shot down a U.S. MQ-9 Reaper drone over Yemen and the plausible deniability about attacks on oil tankers in the Persian Gulf in June 2019 suggest how non-state actors could significantly disrupt maritime order in years to come.25   

Thirdly, maritime order in the oceans is at severe risk from a growing global population’s use of the oceans, as we face problems such as massive overfishing. The oceans face multiple stressors, including increased human use of maritime resources as global population approaches an anticipated 9.8 billion people by 2050. As Greg Poling observes, in the South China Sea alone there is “a series of catastrophes piling on top of one another.”26 China’s island-building reclamation was enormously destructive to coral reefs, and a resurgence in giant clam digging is causing additional damage.27 This environmental damage comes on top of overfishing.

Finally, humanity is at greater risk from the seas themselves, including the impact of natural disasters on built-up coastal areas and the effects of climate change.

Littoral regions, where roughly 40 percent of the world’s population lives, are especially vulnerable to tsunamis and rising sea levels. But the entire world is dependent on the oceans in many ways: for instance, 25 percent of all species on the planet are thought to live in the biodiverse tropical coral reefs, even though these reefs comprise less than 1 percent of the Earth’s surface. Sadly, warming oceans resulting from periodic El Niño heat waves are leading to large-scale bleaching and destruction of many coral reefs. Climate change projections suggest most coral reefs may cease to exist by the middle of the century, although some will be able to adapt because of local conditions such as internal waves.28

Faced with all of these risks, we must do more to find ways of cooperating on our maritime commons, while not flinching from protecting both freedom of the seas and the survival of our shared marine environment.

Maritime Order in the Indo-Pacific

Maritime order is indispensable for preserving a free and open Indo-Pacific region. The United States is approaching these issues within the vision for a free and open Indo-Pacific, as most recently described in the June Indo-Pacific Strategy Report.29 Although released by the Department of Defense, the report adopts a comprehensive approach.

The report’s introduction underscores the Indo-Pacific region’s economic centrality for the world and the United States: “The Indo-Pacific contributes two-thirds of global growth in gross domestic product (GDP) and accounts for 60% of global GDP.”30  Moreover, “nine of the world’s 10 busiest seaports are in the region, and 60 percent of global maritime trade transits through Asia, with roughly one-third of global shipping passing through the South China Sea alone.”31 Moreover, with five Pacific states and Pacific territories on both sides of the International Date Line, “America’s annual two-way trade with the region is $2.3 trillion, with U.S. foreign direct investment of $1.3 trillion in the region—more than China’s, Japan’s, and South Korea’s combined.”32 

Despite its significant economic holdings, the United States is worried by powers seeking to unilaterally revise agreed-upon rules and norms, especially in the maritime domain. The U.S. strategic vision sets forth principles congruent with ASEAN centrality and norms, including seeking the peaceful resolution of disputes, supporting a rules-based approach, and expanding cooperation. The goal of the United States is to help independent actors protect their interests while not allowing any one nation to dominate the Indo-Pacific.

At the recent Shangri-La Dialogue in Singapore, concern over the consequential U.S.-China relationship took center stage. Then Acting Secretary of Defense Patrick Shanahan said the United States cannot stand aside when smaller actors face pressure and coercion (and that includes the Cross-Strait issue, too), nor can the U.S. fail to respond when revisionist powers seek to unilaterally change a rules-based system. The Law of the Sea and marine policy are caught up in the larger global resurgence of major power rivalry in which the basic contest centers on rules and rule-making.

However, big powers can pursue what Joseph Nye has called “cooperative rivalry” at sea—a reason why Acting Secretary Shanahan used his one-on-one discussion with his Chinese counterpart, General Wei Fenghe, to advance ideas for cracking down on North Korea’s illicit trading and strengthening mechanisms for avoiding unintended catalytic war.33   

The United States can also benefit from fashioning a larger bipartisan majority around halting IUU fishing—something the Obama administration elevated and which the Trump administration has recently shown stronger support for in the Pacific Islands and in its work with ASEAN. The same goes for the global challenge of slowing climate change and building resilient coastlines and islands.

In thinking about a more integrated approach, the United States should take note of what Taiwan has created. In 2018, Taiwan established a single cabinet-level agency, the Ocean Affairs Council, headquartered in the southern city of Kaohsiung, to help coordinate all policies affecting the oceans, sea-based resources, and the maritime environment.34 To mark this concerted effort to step up its oceans policy, Taiwan hosted a small, international group of scholars to visit Dongsha Island, the northernmost part of the South China Sea which is only an 80-minute plane ride from Taiwan’s second-largest city, Kaohsiung. The inaugural Dongsha International Conference followed, and this author was one of two American participants. In his opening remarks, Ocean Affairs Council Minister Chung-Wei Lee noted that the United Nations has proclaimed the decade beginning in 2021 a “Decade of Ocean Science for Sustainable Development.”35 By hosting the 2019 Dongsha International Conference, Taiwan demonstrated that it, too, is a seapower in its own right, and it should be fully permitted to join in efforts to protect our global maritime commons.36

The United States should also prepare to harness and enhance existing contributions for maritime order—an appropriate priority for a major seapower state like the United States. As the Indo-Pacific Strategy Report makes clear, the United States is in the fourth year of an Indo-Pacific Maritime Security Initiative (MSI) designed to bolster the security of littoral states in Southeast and South Asia, especially near the South China Sea.37 The MSI represents only a portion of the activities the United States is undertaking to ensure that the oceans continue to support prosperity and peace. Existing investments in building a common operating picture, as well as plans to create interoperability and strengthen maritime capacity of regional partners, might be augmented with new public-private partnerships designed to foster the marine science and culture of the oceans which will be required to withstand the myriad challenges to maritime order now and in the future. These extant and new investments in time and money can ensure that future generations enjoy freedom of the seas and a sustainable ocean environment.

The bottom line is that security and maritime order are intertwined, rather than in opposition to one another.

Dr. Patrick M. Cronin is Senior Fellow and Chair for Asia-Pacific Security at Hudson Institute and is available at pcronin@hudson.org.

References

[1] Andrew Lambert, Seapower States: Maritime Culture, Continental Empires and the Conflict That Made the Modern World (New Haven and London: Yale University Press, 2018).

[2] Ibid., p. 323.

[3] “Factsheet: People and Oceans,” The United Nations Oceans Conference, June 5-9, 2017, https://www.un.org/sustainabledevelopment/wp-content/uploads/2017/05/Ocean-fact-sheet-package.pdf.

[4] “Remarks by President Trump on His Trip to Asia,” Whitehouse.gov, November 15, 2017, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-trip-asia/.

[5] James Kraska and Raul Pedrozo, The Free Sea: The American Fight for Freedom of Navigation (Annapolis, MD: Naval Institute Press, 2018).

[6] Ibid., p. 5.

[7] Few revisionists surpass the successful polemics of Noam Chomsky, who sees the United States as the root of all the world’s ills. For instance, see Noam Chomsky, Who Rules the World? (New York: Metropolitan Books, 2016); and for an informed critique of this book, see Adam Lebor, “US vs Them: A One-Sided Attempt to Blame the United States for Everything,” Times Literary Supplement, July 20, 2016, https://www.the-tls.co.uk/articles/private/us-vs-them/.

[8] “’Common Heritage of Mankind’—Interview: Tommy Koh,” Newsweek, September 25, 1978, p. 64, quoted in Vivek Viswanathan, “Crafting the Law of the Sea: Elliot Richardson and the Search for Order on the Oceans (1977-1980),” (Cambridge, MA: Harvard College 2009), p. 30, https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/files/Viswanathan_2009.pdf.

[9] Ibid., p. 4.

[10] Ibid., p. 6.

[11] This definition is used in the U.S. National Security Presidential Directive-41 (NSPD-41)/Homeland Security Presidential Directive-13 (HSPD-13) (Maritime Security Policy, December 21, 2004), quoted in National Plan to Achieve Maritime Domain Awareness for the National Security for Maritime Security (Washington, DC: Department of Homeland Security, October 2005), p. i., https://www.dhs.gov/sites/default/files/publications/HSPD_MDAPlan_0.pdf.

[12] “Factsheet: Climate Change,” The United Nations Oceans Conference, June 5-9, 2017, https://www.un.org/sustainabledevelopment/wp-content/uploads/2017/05/Ocean-fact-sheet-package.pdf.

[13] Some saw the precedent as so dangerous that they advocated proportionate military strikes; see Michael G. Vickers, “To Avoid a Wider War, Iran Must be Deterred with Limited U.S, Military Strikes,” Washington Post, June 21, 2019, https://www.washingtonpost.com/opinions/2019/06/21/avoid-wider-war-iran-must-be-deterred-with-limited-us-military-strikes/?utm_term=.4ab54725dc3e.

[14] For instance, see James R. Holmes, “When China Rules the Sea,” Foreign Policy, September 23, 2015, https://foreignpolicy.com/2015/09/23/when-china-rules-the-sea-navy-xi-jinping-visit/; more authoritatively and recently, see Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2019 (Washington, DC: Department of Defense, May 2019), p. 7-8, passim.

[15] See “In the Matter of the South China Sea Arbitration before An Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China,” July 12, 2016, https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/PH-CN-20160712-Award.pdf.

[16] “Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS),” International Maritime Organization, October 20, 1972, http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/COLREG.aspx.

[17] See Mark D. Faram, “Both Russia and the United States Point the Fingers After Warships Almost Collide,” Navy Times, June 7, 2019, https://www.navytimes.com/news/your-navy/2019/06/07/both-russia-and-us-point-fingers-after-warships-almost-collide/.

[18] For instance, see Brad Lendon, “Photos Show How Close Chinese Warship Came to Colliding with US Destroyer,” CNN, October 4, 2018, https://edition.cnn.com/2018/10/02/politics/us-china-destroyers-confrontation-south-china-sea-intl/index.html.

[19] James Kraska and Raul Pedrozo, The Free Sea: The American Fight for Freedom of Navigation, (Annapolis, MD: Naval Institute Press, 2018), p. 248-249.

[20] Ibid., p. 248-260.

[21] Ibid., p. 261.

[22] China’s propaganda is pervasive on this issue. For instance, see “Chinese Research Vessel Departs for Seamounts in Mariana Trench,” Global Times, May 15, 2019, http://www.globaltimes.cn/content/1150514.shtml; and more generally, “Vision for Maritime Cooperation Under the Belt and Road Initiative,” Xinhua, June 20, 2017, http://www.xinhuanet.com/english/2017-06/20/c_136380414.htm. Meanwhile, China’s surveys of the oceans have specific military implications; see Steven Stashwick, “New Chinese Ocean Network Collecting Data to Target Submarines, The Diplomat, January 2, 2018, https://thediplomat.com/2018/01/new-chinese-ocean-network-collecting-data-to-target-submarines/; and Andrew Greene, “China Increases Surveillance Near PNG Expanding as Australia and US Begin Manus Island Naval Upgrades,” ABC, April 20, 2019,  https://www.abc.net.au/news/2019-04-21/china-increases-surveillance-near-png/11028192.

[23] For instance, see Joshua Tallis, The War for Muddy Waters: Pirates, Terrorists, Traffickers and Maritime Insecurity (Annapolis, MD: Naval Institute Press, 2019).

[24] “Illegal, Unreported, and Unregulated Fishing,” U.S. Department of State, Office of Marine Conservation, https://www.state.gov/key-topics-office-of-marine-conservation/illegal-unreported-and-unregulated-fishing/.

[25] David S. Cloud and Laura King, “Pentagon Accuses Iran of Shooting Missiles at U.S. Drones,” Los Angeles Times, June 16, 2019, https://www.latimes.com/politics/la-na-pol-iran-drone-attack-20190616-story.html.

[26]  “South China Sea Threatened by ‘a Series of Catastrophes’,”PBS Newshour, May 18, 2019, https://www.pbs.org/newshour/show/south-china-sea-threatened-by-a-series-of-catastrophes.

[27] See Viola Zhou, “China Puts a Stop to Commercial Land Reclamation After Damning Environment Reports: But Key Defence and Infrastructure Projects Likely to Get Green Light,” South China Morning Post, January 2, 2018, https://www.scmp.com/news/china/policies-politics/article/2126567/china-puts-stop-commercial-land-reclamation-after; and John W. McManus, “Massively Destructive Coral Reef Damage from Giant Clam Shell Digging in the South China Sea: Birth, Death and Rebirth,” Webinar published on OpenChannels.org, June 13, 2019, https://www.openchannels.org/webinars/2019/massively-destructive-coral-reef-damage-giant-clam-shell-digging-south-china-sea-birth.

[28] Dr. Anne Cohen, Associate Scientist with Tenure, at the Woods Hole Oceanographic Institution, has brought attention to “Super Reefs” that appear poised to be better able to withstand temperature changes than most coral reefs. For an overview of her recent research, see “Super Reefs” on the Woods Hole website: https://superreefs.whoi.edu/quest-for-super-reefs/.

[29] The Department of Defense Indo-Pacific Strategy Report: Preparedness, Partnerships, and Promoting a Networked Region (Washington, D.C.: DoD, June 1, 2019), https://media.defense.gov/2019/May/31/2002139210/-1/-1/1/DOD_INDO_PACIFIC_STRATEGY_REPORT_JUNE_2019.PDF.

[30] Ibid., p. 2.

[31] Ibid., p. 1.

[32] Ibid., p. 2.

[33] Speaking to the press after meeting Iranian President Hassan Rouhani in Tehran, Japanese Prime Minister Shinzo Abe warned of a possible “accidental conflict” breaking out from rising tensions, mutual suspicions, miscalculation, and the possible role of third parties, including non-state actors. See Amir Vahdat, Aya Batrawy and Jon Gambrell, “Japan Premier Warns US, Iran ‘Accidental Conflict’ Possible,” The Washington Post, June 12, 2019, https://www.washingtonpost.com/world/asia_pacific/iran-newspaper-to-japan-how-can-you-trust-a-war-criminal/2019/06/12/d538abc8-8cdd-11e9-b6f4-033356502dce_story.html?utm_term=.aa9d9e1e401d.

[34] See Duncan DeAeth, “Taiwan’s New ‘Ocean Affairs Council’ to be Headquartered in Kaohsiung,” Taiwan News, April 26, 2018, https://www.taiwannews.com.tw/en/news/3415182.

[35] “United Nations Decade of Ocean Science for Sustainable Development (2021-2030),” United Nations Educational, Scientific, and Cultural Organization (UNESCO), 2018, https://en.unesco.org/ocean-decade.

[36] See Lin Chia-nan, “Dongsha Meeting Urges Conservation, Cooperation,” Taipei Times, June 15, 2019, http://www.taipeitimes.com/News/taiwan/archives/2019/06/15/2003716964.

[37] The Department of Defense Indo-Pacific Strategy Report: Preparedness, Partnerships, and Promoting a Networked Security, p. 49.

Featured Image: SANTA RITA, Guam (May 24, 2019) The Arleigh Burke-class guided missile destroyer USS Curtis Wilbur (DDG-54) departs Guam for exercise Pacific Vanguard (PACVAN). PACVAN is the first of its kind quadrilateral exercise between Australia, Japan, Republic of Korea, and U.S. naval forces. (U.S. Navy photo by Lt. j.g. Emily Bull)

Indo-Asia-Pacific

False Assumptions May Lead to Counterproductive U.S. Policy in the South China Sea

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By Mark J. Valencia

In his piece, Mr. Pham “lays out recommended ways and means that Washington can regain and maintain the strategic initiative in the Indo-Pacific.” However many of his recommendations are based on false assumptions and if implemented are likely to be ineffective and counterproductive.

Mr. Pham fears that “years of American acquiescence and accommodation may have eroded the international rule of law and global norms; diminished the regional trust and confidence in U.S. preeminence, presence, and constancy; weakened some of the U.S. regional alliances and partnerships; undermined Washington’s traditional role as the guarantor of the global economy and provider of regional security, stability, and leadership; and perhaps even emboldened Beijing to expand its global power and influence and accelerate the pace of its deliberate march toward regional preeminence and ultimately global preeminence.” But the rapid decline of U.S. soft power in the region is not due as much to “American acquiescence and accommodation” to China as it is to American political arrogance, cultural chauvinism, and a general lack of respect for its allies and ‘friends’ in the region  and their peoples. Its hypocrisy, interference in domestic politics, and support of brutal dictators did not help. It is now beginning to experience the inevitable blowback from this attitude and behavior and its reign as regional hegemon may be coming to an end. It may well eventually be replaced by China in the region, but for Mr. Pham to assert that China will attain “global preeminence” is premature at best. Indeed, if China does not learn from the American experience, it may well repeat its mistakes and suffer a similar fate.

Mr. Pham asserts that “Washington cannot back down now in the SCS. To do so would further embolden Beijing to expand and accelerate its desperate campaign to control the disputed and contested strategic waterway through which trillions of dollars of global trade flows each year…”  He assumes first that China can ‘control’ the South China Sea and two that such ‘control’ would threaten commercial freedom of navigation. But as Ralph Cossa, President of Pacific Forum CSIS, says, there is little to worry about, at least for the U.S. :“The South China Sea is not and will not be a Chinese lake and the Chinese, even with artificial islands, cannot dominate the sea or keep the U.S. Navy out of it.”  According to retired Admiral and former Director of U.S. National Intelligence Dennis Blair, “The Spratlys are 900 miles away from China for God’s sake. Those things have no ability to defend themselves in any sort of military sense. The Philippines and the Vietnamese could put them out of action, much less us.” More to the point, retired Admiral Michael McDevitt of the center for Naval Analyses asks skeptically, “What vital U.S. interest has been compromised? Shipping continues uninterrupted, the U.S. continues to ignore… their requirement for prior approval, our MDT with Manila remains in force…”

Regarding freedom of navigation, Mr. Pham and I have debated this before. I will only reiterate here that the two countries – one a ratifier of the 1982 UN Convention on the Law of the Sea – which elaborates the concept – and one not – differ on what activities are and are not encompassed by the term. China has not threatened commercial freedom of navigation nor is it likely to do so in peacetime. But the U.S. and Mr. Pham cleverly conflate the freedom of commercial navigation with the freedom to conduct provocative intelligence, surveillance, and reconnaissance (ISR) probes and then argues that when China challenges these probes it is violating “freedom of navigation.” Mr. Pham ignores the problem that because the Convention was a “package deal,” non-ratifiers like the U.S. cannot credibly or legitimately  pick and choose which provisions they wish to abide by, deem them customary law, and unilaterally interpret and enforce them to their benefit. This is especially so regarding the EEZ regime which UNCLOS introduces as sui generis, and which –contrary to U.S. military advice given to its naval officers – does have some restrictions on “freedom of navigation.” They include the duty to pay “due regard” to the rights of the coastal state including its marine scientific research consent and environmental protection regimes protecting as well as its national security. Moreover, China and the U.S. disagree on the meaning of key terms in UNCLOS relevant to the freedom of navigation and which are not defined in the Convention. Besides “due regard” these terms include  “other internationally lawful uses of the sea”, “abuse of rights”, “peaceful use/purpose”, and “marine scientific research.” The point is that the UNCLOS “rules” regarding freedom of navigation are not “agreed.” 

Another of Mr. Pham’s major assumptions is that “Washington has a moral and global obligation of leadership to further encourage and challenge China to become a more responsible global stakeholder…” The U.S. is no longer the world’s moral leader – if it ever was – certainly not from the perspective of China and much of Asia – if not the world. Moreover Mr. Pham’s statement reflects the cultural arrogance that has drawn the U.S. into endless wars—and should be disregarded on that basis alone.

These false assumptions are accompanied by several misleading statements. For example Mr. Pham alleges that China broke  “a 2002 agreement with the ASEAN not to change any geographic features in the SCS”,  and “…the 2015 agreement between Xi Jinping and Barack Obama to not militarize these Chinese-occupied features.”

First, the 2002 Declaration on the Conduct of the Parties in the South China Sea (DOC) does not contain such language and Mr. Pham is apparently interpreting its language for his own purposes. His interpretation is not shared by China, Vietnam, Malaysia, the Philippines, and Taiwan. All have altered the features they occupy to some degree since the agreement on the DOC. Second, according to China, President Xi Jinping agreed to no such thing. This statement repeats a biased interpretation of China’s President Xi Jinping statement regarding the “militarization” of the features. The original quote in Chinese was translated into English as “Relevant construction activities that China are (sic) undertaking in the island of South (sic)–Nansha (Spratly) Islands do not target or impact any country, and China does not intend [emphasis added] to pursue militarization.” That is considerably more ambiguous than Mr. Pham’s interpretation. Chinese spokespersons have since implied that if the U.S. continues its ISR probes, exercises, and Freedom of Navigation Operations challenging China’s claims there, China will prepare to defend itself. Given that the U.S. has continued these missions, it should come as no surprise that China has responded as it said it would.

Based on false assumptions, Mr. Pham essentially recommends U.S. military confrontation of China in the South China Sea. Such confrontation could lead to war—on behalf of others’ disputed claims to ownership of tiny features and resources there. That would not be in the core national security interest of the U.S.

Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies.

Featured Image: Vietnam’s flag flies over the fortified Da Tay Islands in the Spratlys Archipelago. (Reuters)

Indo-Asia-Pacific

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

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By Tuan N. Pham

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

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

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

What America Can Do in the Indo-Pacific

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

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

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

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

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

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

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

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

What America Can Do in the SCS

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

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

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

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

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

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

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

Now is Not the Time to Back Down in the SCS

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

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

Conclusion

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

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

Featured Image: Chinese dragon statute (Wikimedia Commons)