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China’s Expanding Ability to Conduct Conventional Missile Strikes on Guam

August 16, 2016 Guest Author 1 Comment

The following article is adapted from a report by the U.S.-China Economic and Security Review Commission. Read the original report here.

By Jordan Wilson

Observers of China’s September 2015 military parade witnessed the surprise introduction of a new road-mobile intermediate-range ballistic missile (IRBM), the DF-26, reported to feature nuclear, conventional, and antiship variants and a range of 3,000–4,000 kilometers (km) (1,800–2,500 miles [mi])^¹—greater than any of China’s current systems except the ICBMs in its nuclear arsenal. This range would cover U.S. military installations on Guam, roughly 3,000 km (1,800 mi) from the Chinese mainland, prompting some analysts and netizens to refer to the missile as the “Guam Express” or “Guam Killer” (derived from the term “carrier killer” used to refer to China’s shorter-range DF-21D antiship ballistic missile).^² Combined with improved air- and sea-launched cruise missiles and modernizing support systems, the DF-26 would allow China to bring a greater diversity and quality of assets to bear against Guam in a contingency than ever before.

China’s reason for developing capabilities to hold locations in the Pacific at risk can be traced to the domestic political interests of its leaders. The Chinese Communist Party (CCP) perceives that its legitimacy in the eyes of China’s citizens is based, in part, on its ability to demonstrate that it is capable of strengthening the nation^³ and safeguarding China’s territorial interests and claims.^⁴ Yet the CCP leadership believes the United States’ presence in the Asia Pacific—intended to back the U.S. commitment to defending key interests and upholding global norms in the Asia Pacific, such as the security of allies and partners, the peaceful resolution of disputes, and freedom of navigation^⁵—could interfere with its ability to defend these interests and claims if a regional crisis were to arise.^⁶ This concern has prompted Beijing to develop conventional missile capabilities to target U.S. military facilities in the Asia Pacific in general, and Guam in particular, in order to expand China’s options and improve its capacity to deter or deny U.S. intervention during such a crisis. Guam is referenced in many Chinese academic and military writings as a highly important feature in the purported U.S. “containment” strategy,^⁷ with analysts noting its strategic position,^⁸ and its role as an “anchor” of U.S. forces in the region^⁹ and of the “second island chain”* in particular.^¹⁰ China has been able to reach Guam with nuclear weapons for decades. It could theoretically employ conventional gravity bombs, naval gunfire, and torpedoes as well, but the same air and naval platforms that would deliver these are now equipped with significantly more advanced cruise missiles. This article thus focuses on the more relevant concerns posed by missiles below the nuclear threshold.

First and Second Island Chains Showing Guam. The precise boundaries of the island chains vary among Chinese sources, and have never been officially defined by China’s government. Andrew S. Erickson and Joel Wuthnow, “Barriers, Springboards and Benchmarks: China Conceptualizes the Pacific ‘Island Chains,’” China Quarterly, January 21, 2016, 3, 7-9, 17. http://journals.cambridge.org/abstract_S0305741016000011. (U.S. Department of Defense)

Multiplying Forces Capable of Striking Guam

Several new conventional platforms and weapons systems developed by China in recent years have increased its ability to hold U.S. forces stationed on Guam at risk in a potential conflict:

Intermediate-Range Ballistic Missiles: The DF-26 is China’s first conventionally-armed IRBM and first conventionally-armed ballistic missile capable of reaching Guam. Its inclusion in the September 2015 parade indicates it has likely been deployed as an operational weapon,^¹¹ although only a few have likely been installed thus far. The missile also reportedly has serious accuracy limitations:^¹² a 2015 report by IHS Jane’s assesses its current circular error probable (CEP)** at intermediate range to be 150–450 meters,^¹³ while China’s DF-15B short-range ballistic missile, for example, is reported to have a CEP of 5–10 meters as a precision guided weapon.^¹⁴ Practically, this means that many more launches would be required to achieve the same degree of confidence in inflicting damage, pending the improvement of the sensor systems on the missile and the space-based systems providing pre- and post-strike intelligence, surveillance, and reconnaissance (ISR) and position, navigation, and timing data.

Antiship Ballistic Missiles (ASBMs): The DF-26 ASBM version is, like the DF-21D, unproven against a moving target at sea^¹⁵ but likely to undergo further development.

Air-Launched Land Attack Cruise Missiles (LACMs): China’s newest and most capable bomber, the H-6K, when equipped with up to six recently-developed air-launched CJ-20 LACMs, gives China the ability to conduct precision airstrikes and potentially reach Guam with air-launched weapons for the first time.^¹⁶ However, these antiquated bombers*** would have a high probability of being detected and intercepted by U.S. aircraft and anti-aircraft systems.^¹⁷ Such an attack would also outdistance the range of any Chinese escort fighters, according to a 2015 RAND Corporation study,^¹⁸ and China’s air refueling fleet is still too small to support large-scale, long-distance air combat.^¹⁹

Air-Launched Antiship Cruise Missiles (ASCMs): The PLA Navy’s H-6 bombers, including its H-6Ks, can carry up to four of China’s new long-range, supersonic YJ-12 ASCMs,^²⁰ but would have the same limitations in employing these weapons.

Sea-Launched Land Attack Cruise Missiles: The PLA Navy currently does not have the ability to strike land targets, but China has likely begun to develop a sea-based LACM capability over the last few years.^²¹ The U.S. Department of Defense (DOD) has stated that this capability may involve China’s forthcoming Type 095 nuclear-powered attack submarine (SSN) or new LUYANG-III guided missile destroyer (DDG).^²²

Sea-Launched Antiship Cruise Missiles: PLA Navy platforms equipped with ASCMs, particularly the new YJ-18, could complicate U.S. naval operations near its Guam facilities, provided the PLA Navy vessels were able to get into position without being detected. China’s quietest submarines, however, are diesel-electric and relatively slow in comparison to other types (see comparison in figure below).

The Expanding Range of China's Conventional Missiles. Full list of sources available here. — The Expanding Range of China’s Conventional Missiles. Click to enlarge. (U.S.-China Economic and Security Review Commission)

China’s new conventional regional strike weapons, as well as ongoing qualitative improvements to its naval operations and C4ISR (Command, Control, Communications, Computers, Intelligence, Surveillance, and Reconnaissance) systems, provide Beijing with the ability to hold U.S. forces and installations on Guam at greater risk than in the past, despite remaining challenges and gaps that indicate the level of risk is still low. Overall, the efficiency/vulnerability tradeoff between China’s air and naval forces probably factors into why China pursued a third option by developing DF-26 ballistic missiles. Beijing is working to advance its regional strike capabilities across the board, however, indicating concerns will be posed by ground-, air-, and sea-launched types going forward. To evaluate China’s ability to strike Guam in the future, the areas that should be monitored most closely are increased deployments of DF-26 missiles and qualitative improvements to China’s precision strike capabilities, bomber fleet, in-air refueling capability, and submarine quieting technology.

Implications for the United States

Guam is growing in importance to U.S. strategic interests and any potential warfighting operations in the Asia Pacific, even as China’s ability to strike the island is increasing. The island is home to two U.S. military facilities, Apra Naval Base and Andersen Air Force Base, and hosts a total of about 6,000 military personnel^²³ (with 5,000 more projected to be moved from Okinawa by 2020^²⁴), as well as four nuclear attack submarines;^²⁵ three Global Hawk UAVs;^²⁶ continuous rotations of B1, B-2, and B-52 bombers;^²⁷ temporary fighter rotations;^²⁸ the largest U.S. weaponry storage in the Pacific;^²⁹ and a Terminal High Altitude Area Defense (THAAD) missile battery.^³⁰ It is also crucial to U.S. preparations for responding to crises, providing valuable basing capacity^³¹ and a location to which the United States can pull back assets from within China’s precision strike range, if needed.

China’s conventional missile force modernization could complicate the United States’ response in a contingency in which Beijing sought to deny or delay a U.S. intervention. An assessment by the RAND Corporation, for example, estimates that with 50 (hypothetically more accurate) IRBMs, “China could keep Andersen AFB closed to large aircraft for more than eight days (assuming missile reliability of 75 percent and eight-hour repair times), even if the PLA is denied battle damage assessment … With 100 IRBMs, the PLA could make a full sweep of all unsheltered aircraft parking areas and then use the rest of its inventory to keep Andersen shut to large aircraft for 11 days.”³²Of additional concern, China’s leaders could also be more willing to resort to military force in an existing crisis if they believed they could successfully hold Guam at risk, diminishing the United States’ ability to deter escalation, although it is difficult to determine the extent to which better operational capabilities might influence strategic thinking in Beijing.

U.S. experts and analysts have proposed several options that could help mitigate these concerns:

Hardening Facilities on Guam: Investing in improved protection for U.S. assets on Guam could increase the costliness and uncertainty of conventional ballistic and cruise missile strikes against these facilities, and thereby work to disincentivize a first strike and increase regional stability, as noted by the U.S.-China Economic and Security Review Commission in its 2015 Report to Congress.^³³ However, this approach is complicated by the likely high costs of such investments,^³⁴ and the potential for China to counter them with an even further buildup of its missile arsenal.

Dispersing U.S. Regional Military Facilities: A greater dispersion of U.S. military facilities throughout the Asia Pacific, or access to an increased number of alternate regional ports and airfields, would multiply the number of targets against which China might employ missile strikes and complicate its ability to disrupt U.S. operations in a contingency, particularly through a first strike.^³⁵ This approach does face high financial costs, the possibility that China might respond with further missile deployments, and potential difficulties in obtaining approval and financial support from host countries.^³⁶ It also runs counter to efforts to reduce long-term dependence on foreign bases. The United States has nonetheless been able to take steps towards this objective, recently securing access to facilities in the Philippines and entering discussions regarding access to airfields in Australia.^³⁷

Investments in New Missile Defense Capabilities: Continued U.S. investments in “next-generation” missile defense initiatives such as directed energy and rail gun technologies, as recommended in the Commission’s 2015 Report to Congress,^³⁸ could yield better options for defending U.S. bases and platforms from China’s conventional ballistic and cruise missiles. While current missile defense systems such as THAAD—already stationed on Guam—and PAC-3 (the upgraded Patriot missile system) may help to an extent, they are intended to stop North Korean missiles and would likely not completely protect against an attack from China.^³⁹

Revisiting the Intermediate-Range Nuclear Forces (INF) Treaty: China’s missile force modernization has contributed to a U.S. policy debate regarding the United States’ participation in the INF Treaty, particularly given Russia’s recent violations of its Treaty obligations.^⁴⁰ Signed by the United States and Soviet Union in 1987, the INF Treaty required “destruction of both parties’ ground-launched ballistic and cruise missiles with ranges between 500 and 5,500 kilometers (310 and 3,418 miles), along with their launchers and associated support structures and support equipment,” altogether eliminating 846 U.S. and 1,846 Soviet missiles. Although titled a “Nuclear Forces” treaty, INF’s prohibition of conventional systems is the substance of the current debate, as China’s buildup of conventional intermediate-range ballistic and cruise missiles has been a driving force behind concerns regarding the Treaty in recent years.⁴¹ As China has engaged in a relatively low-cost buildup of land-based theater-range conventional missiles, including the DF-26, the United States has been prevented under the Treaty from doing so. As policymakers weigh the costs and benefits of continued U.S. participation, three potential actions would allow the United States to carefully explore these questions while remaining in full compliance with the Treaty: reports examining the potential benefits and costs of incorporating ground-launched short-, medium-, and intermediate-range conventional cruise and ballistic missile systems into the United States’ Asia Pacific defensive force structure;^⁴² research and development activities for conventional INF-accountable cruise and ballistic missiles, in preparation for possible changes;^⁴³ and discussions with allies regarding whether they would be open to hosting such systems,^⁴⁴ investing in INF-accountable missiles themselves,^⁴⁵ or joining in advocating for a broadened Treaty at the multilateral or global level.^⁴⁶

Maintaining Superiority in Regional Strike Capabilities: The United States could invest in maintaining its ability to strike an adversary’s launchers and support networks as part of its deterrence posture in the Asia Pacific, aiming to prevent conflicts from beginning and to protect U.S. regional assets should one begin.^⁴⁷ Some experts have specifically noted the high number of LACMs carried by some U.S. attack submarines^⁴⁸ and the potential for U.S. procurement programs such as the Long Range Strike Bomber and Virginia payload module (which increases the missile capacity of the Virginia-class SSN) to provide a higher volume of firepower at a more affordable rate than ground-launched missile forces.^⁴⁹ Policymakers could continuously monitor the performance and sustainability of these and other aspects of the U.S. regional force posture to ensure the United States maintains its military edge.

Conclusion

Beijing’s assessment of Guam’s role in the United States’ regional force posture has made it a focal point of developments in China’s conventional regional strike capabilities, although limitations to these systems render the current risk to U.S. forces on Guam in a potential conflict relatively low. At present, the new DF-26 IRBM headlines China’s expanding capabilities, although it likely will remain extremely inaccurate until China successfully extends its precision strike complex. China could also employ surface- and submarine-launched ASCM attacks, should the platforms be able to move into range undetected; while air-launched ASCM and LACM attacks could reach Guam more quickly, but with a high risk of the bombers being detected and intercepted by U.S. aircraft and anti-aircraft systems. The DF-26 ASBM is still unproven, and China has yet to develop a sea-launched LACM capability. China will likely continue to invest in developing these systems, however, even as Guam’s importance to U.S. strategic interests in the Asia Pacific continues to grow. Options such as hardening facilities on Guam, further dispersing U.S. regional military facilities, continuing investments in “next-generation” missile defense capabilities, revisiting the Intermediate-Range Nuclear Forces Treaty (INF) Treaty, and maintaining superiority in regional strike capabilities offer potential avenues for addressing these key security concerns.

Jordan Wilson is a Policy Analyst at the U.S.-China Economic and Security Review Commission, focusing on U.S.-China security and foreign policy issues.

Featured Image: The Los Angeles-class submarine USS Topeka (SSN 754) arrives at its new homeport of U.S. Naval Base Guam in May 2015. Courtesy of Navaltoday.com.

Endnotes

* The first island chain refers to a line of islands running through the Kurile Islands, Japan and the Ryukyu Islands, Taiwan, the Philippines, Borneo, and Natuna Besar. The second island chain is farther east, running through the Kurile Islands, Japan, the Bonin Islands, the Mariana Islands, and the Caroline Islands. Bernard D. Cole, The Great Wall at Sea: China’s Navy in the Twenty-First Century, Naval Institute Press, 2010, 174-176.

** CEP is defined as the radius of a circle, centered about the intended point of impact, whose boundary is expected to include the landing points of 50 percent of the rounds. Oleg Yakimenko, “Statistical Analysis of Touchdown Error for Self-Guided Aerial Payload Delivery Systems,” (American Institute of Aeronautics and Astronautics Aerodynamic Decelerator Systems Conference, Daytona Beach, FL, March 26, 2013), 1.

*** The H-6 design, on which future versions have been based, is a licensed copy of the ex-Soviet Tu-16 “Badger” medium jet bomber, first flown in 1952. U.S. Office of Naval Intelligence, The PLA Navy: New Capabilities and Missions for the 21st Century, April 2015, 18; Encyclopedia Britannica, “Tu-16.” http://www.britannica.com/technology/Tu-16.

Citations

1. U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 372; Andrew S. Erickson, “Showtime: China Reveals Two ‘Carrier-Killer’ Missiles,” National Interest, September 3, 2015; and Richard D. Fisher, Jr., “DF–26 IRBM May Have ASM Variant, China Reveals at Military Parade,” Jane’s Defence Weekly, September 2, 2015.

2. Wang Changqin and Fang Guangming “PRC Military Sciences Academy Explains Need for Developing the DF-26 Anti-Ship Missile,” China Youth Daily (Chinese edition), November 30, 2015; Andrew S. Erickson, “Showtime: China Reveals Two ‘Carrier-Killer’ Missiles,” National Interest, September 3, 2015. http://nationalinterest.org/feature/showtime-china-reveals-two-carrier-killer-missiles-13769; Wendell Minnick, “China’s Parade Puts U.S. Navy on Notice,” Defense News, September 3, 2015. http://www.defensenews.com/story/defense/naval/2015/09/03/chinas-parade-puts-us-navy-notice/71632918/; Charles Clover, “China Unveils ‘Guam Express’ Advanced Anti-Ship Missile,” Financial Times, September 5, 2015. http://www.ft.com/intl/cms/s/0/8847ddd0-5225-11e5-8642-453585f2cfcd.html#axzz3uKTMR2rn; and Franz-Stefan Gady, “Revealed: China for the First Time Publicly Displays ‘Guam Killer’ Missile,” National Interest, August 31, 2015. http://thediplomat.com/2015/08/revealed-china-for-the-first-time-publicly-displays-guam-killer-missile/.

3. Robert Lawrence Kuhn, “Xi Jinping’s Chinese Dream,” New York Times, June 4, 2013. http://www.nytimes.com/2013/06/05/opinion/global/xi-jinpings-chinese-dream.html?_r=0.

4. Alastair Iain Johnston, “The Evolution of Interstate Security Crisis Management Theory and Practice in China,” Naval War College Review 69:1 (2016), 40; Edward Wong, “Security Law Suggests a Broadening of China’s ‘Core Interests,’” New York Times, July 2, 2015. http://www.nytimes.com/2015/07/03/world/asia/security-law-suggests-a-broadening-of-chinas-core-interests.html; Ministry of National Defense of the People’s Republic of China, Defense Ministry’s Regular Press Conference on Nov 26, November 26, 2015; and Caitlin Campbell et al., “China’s ‘Core Interests’ and the East China Sea,” U.S.-China Economic and Security Review Commission, May 10, 2013, 1-5. http://www.uscc.gov/sites/default/files/Research/China’s%20Core%20Interests%20and%20the%20East%20China%20Sea.pdf.

5. White House Office of the Press Secretary, Fact Sheet: Advancing the Rebalance to Asia and the Pacific, November 15, 2015. https://www.whitehouse.gov/the-press-office/2015/11/16/fact-sheet-advancing-rebalance-asia-and-pacific; Andrew S. Erickson and Justin D. Mikolay, “Guam and American Security in the Pacific,” in Andrew S. Erickson and Carnes Lord, eds., Rebalancing U.S. Forces: Basing and Forward Presence in the Asia-Pacific, Naval Institute Press, 2014, 17, 25; and Andrew J. Nathan and Andrew Scobell, China’s Search for Security, Columbia University Press, 2012, 357.

6. Alastair Iain Johnston, “The Evolution of Interstate Security Crisis Management Theory and Practice in China,” Naval War College Review 69.1, 2016, 34; Harry J. Kazianis, “America’s Air-Sea Battle Concept: An Attempt to Weaken China’s A2/AD Strategy,” China Policy Institute, 2014, 1-2. http://www.nottingham.ac.uk/cpi/documents/policy-papers/cpi-policy-paper-2014-no-4-kazianis.pdf; Lu Zhengtao, “PRC Article Urges PLA to Boost Air-Sea Force Building for Breaking U.S. ‘Island Chain’ Strategy,” China Youth Daily (Chinese edition), November 19, 2013; Toshi Yoshihara and James R. Holmes, Red Star over the Pacific: China’s Rise and the Challenge to U.S. Maritime Strategy, Naval Institute Press, 2010, 20; and Bi Lei, “Sending an Additional Aircraft Carrier and Stationing Massive Forces: The U.S. Military’s Adjustment of Its Strategic Disposition in the Asia-Pacific Region,” People’s Daily (Chinese edition), August 13, 2004.

7. Song Shu, “Is the DF-26 a ‘Guam Killer?’” Naval Warships (Chinese), December 1, 2014; Li Jie, “U.S. Quickens Construction of ‘Bridgeheads’ of the Second Island Chain,” Global Times (Chinese edition), September 30, 2013; Lin Limin, “A Review of the International Strategic Situation in 2012,” Contemporary International Relations (Chinese), December 2012; Zhang Ming, “Security Governance of the ‘Global Commons’ and China’s Choice,” Contemporary International Relations (Chinese), May 2012; Liu Qing, “New Changes in U.S. Asia-Pacific Strategic Deployment,” Contemporary International Relations (Chinese), May 20, 2011; Liu Ming, “Obama Administration’s Adjustment of East Asia Policy and Its Impact on China,” Contemporary International Relations (Chinese), February 20, 2011; Modern Navy (Chinese), The Island Chains, China’s Navy, October 1, 2007; and Lu Baosheng and Guo Hongjun, “Guam: A Strategic Stronghold on the West Pacific,” China Military Online, June 16, 2003.

8. Qiu Yongzheng, “Second U.S. Aircraft Carrier Likely To Be Deployed to East Asia,” Youth Reference (Chinese), July 21, 2004.

9. Run Jiaqi, “Experts Say China’s Military Power Has Forced the United States to Fall Back from the First Island Chain,” People’s Daily (Chinese edition), October 8, 2014.

10. Andrew S. Erickson and Joel Wuthnow, “Barriers, Springboards and Benchmarks: China Conceptualizes the Pacific ‘Island Chains,’” China Quarterly, January 21, 2016, 9. http://journals.cambridge.org/abstract_S0305741016000011; Li Jie, “U.S. Quickens Construction of ‘Bridgeheads’ of the Second Island Chain,” Global Times (Chinese edition), September 30, 2013; Liu Bin, “The ‘Roadmap’ of the Asia-Pacific Military Bases of the U.S. Military,” People’s Daily (Chinese edition) April 23, 2012; and Modern Navy (Chinese), The Island Chains, China’s Navy, October 1, 2007.

11. Andrew S. Erickson, “Showtime: China Reveals Two ‘Carrier-Killer’ Missiles,” National Interest, September 3, 2015.

12. IHS, Jane’s Strategic Weapons Systems: Offensive Weapons, China, DF-26, September 11, 2015, 2.

13. Ibid.

14. Ibid, 4.

15. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, written testimony of Dennis Gormley, April 22, 2015; and Ronald O’Rourke, “China Naval Modernization: Implications for U.S. Navy Capabilities—Background and Issues for Congress,” Congressional Research Service, June 1, 2015, 6–7.

16. U.S. Department of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2015, April 2015, 12, 36, 40; U.S.-China Economic and Security Review Commission, Hearing on China’s Military Modernization and Implications for the United States, written testimony of Lee Fuell, January 30, 2014; and U.S. House Armed Services Subcommittee on Strategic Forces, Hearing on Nuclear Weapons Modernization in Russia and China: Understanding Impacts to the United States, written testimony of Richard D. Fisher, Jr., October 14, 2011.

17. Ian Easton, “China’s Evolving Reconnaissance Strike Capabilities: Implications for the U.S.-Japan Alliance,” Project 2049 Institute, February 2014, 26. http://www2.jiia.or.jp/pdf/fellow_report/140219_JIIA-Project2049_Ian_Easton_report.pdf.

18. Eric Heginbotham et al., “The U.S.-China Military Scorecard: Forces, Geography, and the Evolving Balance of Power 1996-2017,” RAND Corporation, 2015, 63. http://www.rand.org/content/dam/rand/pubs/research_reports/RR300/RR392/RAND_RR392.pdf.

19. Michael Pilger, “First Modern Tanker Observed at Chinese Airbase,” U.S.-China Economic and Security Review Commission, November 18, 2014, 1. http://origin.www.uscc.gov/sites/default/files/Research/StaffBulletin_First%20Modern%20Tanker%20Observed%20at%20Chinese%20Airbase_0.pdf.

20. U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 357, 373.

21. U.S. Department of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2014, May 2014, 36. U.S.-China Economic and Security Review Commission, Hearing on PLA Modernization and its Implications for the United States, written testimony of Jesse Karotkin, January 10, 2014; Craig Murray, Andrew Berglund, and Kimberly Hsu, “China Naval Modernization and Implications for the United States,” U.S.-China Economic and Security Review Commission, August 26, 2013. http://origin.www.uscc.gov/sites/default/files/Research/Backgrounder_China’s%20Naval%20Modernization%20and%20Implications%20for%20the%20United%20States.pdf.

22. U.S. Department of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2014, May 2014, 36; U.S. Department of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2013, May 2013, 6-7.

23. Shirley A. Kan, “Guam: U.S. Defense Deployments,” Congressional Research Service, November 26, 2014, 2, 3. https://www.fas.org/sgp/crs/row/RS22570.pdf.

24. Gidget Fuentes, “Navy Signs off on Plan to Move 5,000 Marines to Guam,” Military Times, September 5, 2015. http://www.marinecorpstimes.com/story/military/2015/09/05/navy-signs-off-plan-move-5000-marines-guam/71657614/.

25. Commander, Submarine Force, U.S. Pacific Fleet Public Affairs, “Second Submarine Tender to Be Homeported in Guam,” December 23, 2015. http://www.csp.navy.mil/Media/News-Articles/Display-News/Article/637958/second-submarine-tender-to-be-homeported-in-guam; Dean Cheng, “China’s Bomber Flight into the Central Pacific: Wake-Up Call for the United States,” War on the Rocks, December 23, 2015. http://warontherocks.com/2015/12/chinas-bomber-flight-into-the-central-pacific-wake-up-call-for-the-united-states/.

26. Shirley A. Kan, “Guam: U.S. Defense Deployments,” Congressional Research Service, November 26, 2014, 2, 3. https://www.fas.org/sgp/crs/row/RS22570.pdf.

27. Eric Heginbotham et al., “The U.S.-China Military Scorecard: Forces, Geography, and the Evolving Balance of Power 1996-2017,” RAND Corporation, 2015, 41. http://www.rand.org/content/dam/rand/pubs/research_reports/RR300/RR392/RAND_RR392.pdf; Andrew S. Erickson and Justin D. Mikolay, “Guam and American Security in the Pacific,” in Andrew S. Erickson and Carnes Lord, eds., Rebalancing U.S. Forces: Basing and Forward Presence in the Asia-Pacific, Naval Institute Press, 2014, 20.

28. Oriana Pawlyk, “12 Air Force F-16s to Deploy to Guam,” Military Times, January 8, 2016. http://www.militarytimes.com/story/military/2016/01/08/12-air-force-f-16s-deploy-guam/78501546/; Shirley A. Kan, “Guam: U.S. Defense Deployments,” Congressional Research Service, November 26, 2014, 3. https://www.fas.org/sgp/crs/row/RS22570.pdf.

29. Andrew S. Erickson and Justin D. Mikolay, “Guam and American Security in the Pacific,” in Andrew S. Erickson and Carnes Lord, eds., Rebalancing U.S. Forces: Basing and Forward Presence in the Asia-Pacific, Naval Institute Press, 2014, 17.

30. Wyatt Olson, “Guam Anti-Missile Unit’s Main Focus Is North Korean Threat,” Stars and Stripes, January 10, 2016. http://www.stripes.com/news/guam-anti-missile-unit-s-main-focus-is-north-korean-threat-1.388070; Jen Judson, “Lockheed Secures $528 Million U.S. Army Contract for More THAAD Interceptors,” Defense News, January 4, 2016. http://www.defensenews.com/story/defense/2016/01/04/lockheed-secures-528-million-contract-for-more-thaad-interceptors/78274842/; Cheryl Pellerin, “Work: Guam Is Strategic Hub to Asia-Pacific Rebalance,” U.S. Department of Defense News, August 19, 2014. http://www.defense.gov/News-Article-View/Article/603091/work-guam-is-strategic-hub-to-asia-pacific-rebalance; and Shirley A. Kan, “Guam: U.S. Defense Deployments,” Congressional Research Service, November 26, 2014, 3. https://www.fas.org/sgp/crs/row/RS22570.pdf.

31. Eric Heginbotham et al., “The U.S.-China Military Scorecard: Forces, Geography, and the Evolving Balance of Power 1996-2017,” RAND Corporation, 2015, 78-79. http://www.rand.org/content/dam/rand/pubs/research_reports/RR300/RR392/RAND_RR392.pdf.

32. Ibid, 64-65.

33. U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 566.

34. Marcus Weisgerber, “Pentagon Debates Policy to Strengthen, Disperse Bases,” Defense News, April 13, 2014. http://archive.defensenews.com/article/20140413/DEFREG02/304130017/.

35. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, written testimony of Toshi Yoshihara, April 1, 2015; Marcus Weisgerber, “Pentagon Debates Policy to Strengthen, Disperse Bases,” Defense News, April 13, 2014. http://archive.defensenews.com/article/20140413/DEFREG02/304130017/; Andrew S. Erickson and Justin D. Mikolay, “Guam and American Security in the Pacific,” in Andrew S. Erickson and Carnes Lord, eds., Rebalancing U.S. Forces: Basing and Forward Presence in the Asia-Pacific, Naval Institute Press, 2014, 25, 31.

36. Shirley A. Kan, “Guam: U.S. Defense Deployments,” Congressional Research Service, November 26, 2014, 11. https://www.fas.org/sgp/crs/row/RS22570.pdf; David J. Berteau et al., “U.S. Force Posture Strategy in the Asia-Pacific Region: An Independent Assessment,” Center for Strategic and International Studies, August 2012, 19. http://csis.org/files/publication/120814_FINAL_PACOM_optimized.pdf.

37. Armando J. Heredia, “Analysis: New U.S.-Philippine Basing Deal Heavy on Air Power, Light on Naval Support,” USNI News, March 22, 2016. https://news.usni.org/2016/03/22/analysis-new-u-s-philippine-basing-deal-heavy-on-air-power-light-on-naval-support; Rob Taylor, “U.S. Air Force Seeks to Enlarge Australian Footprint,” Wall Street Journal, March 8, 2016. http://www.wsj.com/articles/u-s-air-force-seeks-to-enlarge-australian-footprint-1457431803; Manuel Mogato, “Philippines Offers Eight Bases to U.S. Under New Military Deal,” Reuters, January 13, 2016. http://www.reuters.com/article/us-philippines-usa-bases-idUSKCN0UR17K20160113.

38. U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 566.

39. Andrew S. Erickson and Justin D. Mikolay, “Guam and American Security in the Pacific,” in Andrew S. Erickson and Carnes Lord, eds., Rebalancing U.S. Forces: Basing and Forward Presence in the Asia-Pacific, Naval Institute Press, 2014, 22.

40. Senate Armed Services Committee, Hearing on Worldwide Threats, statement for the record of Director of National Intelligence James R. Clapper, February 9, 2016, 7. http://www.armed-services.senate.gov/imo/media/doc/Clapper_02-09-16.pdf; U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 370.

41. U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 370.

42. Ibid, 566.

43. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Elbridge Colby, April 1, 2015; U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Robert Haddick, April 1, 2015.

44. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, written testimony of Evan Montgomery, April 1, 2015.

45. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Toshi Yoshihara, April 1, 2015; U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Evan Montgomery, April 1, 2015.

46. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Mark Stokes, April 1, 2015.

47. U.S.-China Economic and Security Review Commission, Chapter 2, Section 3, “China’s Offensive Missile Forces,” in 2015 Annual Report to Congress, November 2015, 368-369.

48. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Dennis Gormley, April 1, 2015.

49. U.S.-China Economic and Security Review Commission, Hearing on China’s Offensive Missile Forces, oral testimony of Robert Haddick, April 1, 2015.

Featured Image: USS Topeka at Polaris Point, Guam in 2012. (U.S. Navy)

Asia-Pacific, Territorial and Law of the Sea Disputes

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

February 18, 2016 Guest Author Leave a comment

By Alex Calvo

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

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

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

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

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

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

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

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

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

Asia-Pacific, Territorial and Law of the Sea Disputes

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 4

February 10, 2016 Guest Author Leave a comment

By Alex Calvo

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

3.- “Dashed Line as a Historic Claim”

The third way to see the dashed-line, according to the Limits in the Seas series paper, would be as a historic claim. Under UNCLOS this can take two forms, “one of sovereignty over the maritime space (‘historic waters’ or ‘historic title’)” or “some lesser set of rights (‘historic rights’) to the maritime space.” The paper devotes much more room to discussing this possibility than to the two previous alternative interpretations. It begins by pointing out that “some Chinese government statements and acts could be read to support a version of this historic claim interpretation”, and by noting that given that “the dashed-line maps pre-date the People’s Republic of China, the views of Taiwan are also of interest.” Concerning the Island’s claims, the text underlines that while in 1993 its “Policy Guidelines for the South China Sea” said that the dashed lines enclosed a “’historic water limit’ within which Taiwan ‘possesses all rights and interests’” (see K-H. Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea,” Ocean Development and International Law, Volume 41, 2010, pp. 237-252), Taipei has not stuck to this view. “Subsequent maritime legislation enacted by Taiwan and subsequent public statements, however, suggests that this view may no longer be officially held,” noted the State Department in another Limits on the Seas series issue, published in 2005, devoted to Taiwan. While the text refers to this 2005 paper, the latter’s contents do not discuss in depth ROC claims on the South China Sea, as clear from the fact that the term “South China Sea” only appears three times, whereas “dash” is not to be found. Thus, while the assertion that in studying PRC claims one should pay attention to ROC claims seems logical, this is not followed up, either in the 2005 Limits on the Issues paper devoted to Taiwan, or in the 2014 one dealing with China. In other words, the Department of State does not follow its own advice. How should we read this? On the one hand, the preeminent use of “Taiwan” may seem to amount to a limited recognition of political realities on the ground, in opposition to Beijing’s views, further contradicted by the scant regard for ROC practice as opposed to the PRC’s emphasis on administrative and international legal continuity with the Nationalist regime. An alternative, more Beijing-friendly, interpretation of the DOS approach may be that it is treating Taipei as the de facto authority on the Island, also for law of the sea purposes, while restricting its role in the South China Sea, where the PRC has consistently sought to exclude Taiwan from regional fora, in line with its traditional policy towards the Island. More generally, this may reflect the complex and ambiguous status of Taiwan, with neither the Island itself nor countries like the United States completely sure what it is. To add to the confusion concerning Taiwan in the DOS paper, it states on page 21 that “Many islands and other features in the South China Sea are occupied not just by China, but by … Taiwan,” yet again this is not followed by any detailed examination of Taipei’s claims.

Going back to evidence for the possible interpretation of Beijing’s claims as historic, the report cites as “most notable” China’s “1998 EEZ and continental shelf law, which states [in Article 14] without further elaboration that ‘[t]he provisions of this Act shall not affect the historical rights of the People’s Republic of China’” (emphasis added in the DOS report). China’s 2011 Note Verbale says that Beijing’s claims are supported by “historical and legal evidence,” but while the DOS report adds emphasis to “historical”, one should be careful not to confuse a historical claim with a claim supported by history. A country may put forward historical evidence in both negotiations and arbitration or adjudication in areas where UNCLOS refers to “equitable” solutions. The text also notes how many “Chinese institutions and commentators have considered that the dashed-line maps depict China’s historic title or historic rights.”

The DOS reports explains that “some” Chinese Government actions and statements which are “inconsistent with” UNCLOS, while not amounting to “express assertions of a historic claim, they may indicate that China considers that it has an alternative basis – such as historic title or historic rights – for its maritime claims in the South China Sea,” and provides some examples, such as the assertion by Foreign Ministry Spokesperson Qin Gang on 10 March 2014 that the Second Thomas Shoal (Ren’ai Reef) was under Chinese “sovereignty.” Qin Gang said “It is known to all that China has sovereignty over the Nansha Islands and their surrounding waters, including the Ren’ai Reef.” This mantra about sovereignty, together with repeated appeals to history, could indeed be considered as evidence that what Beijing has in mind is a historic claim. Furthermore, it may well be a claim going beyond the provisions for such term in UNCLOS. The report provides further evidence, beyond statements, to support the view that China may be making a historical claim. First of all, the “periodic oath-taking ceremonies at James Shoal” by Chinese naval vessels “to affirm ‘sovereignty’ over this bank” and the 2012 introduction by the China National Offshore Oil Corporation (CNNOC) of lease blocks in front of Vietnam’s central coast, in “waters under jurisdiction of the People’s Republic of China” according to the company yet with “portions of two of these blocks (BS16, DW04)” extending “without explanation to waters that are beyond 200 nm from any Chinese-claimed island.” The DOS report stresses that the resulting “assertion of maritime jurisdiction … exceeds what is provided for under” UNCLOS.

“Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.” — Coat of arms of USS Lassen (DDG 82), which has conducted FONOPS in the South China Sea. Experts have criticized their ambiguity and are still debating their exact nature.

The idea that Chinese claims are “separate from, and additional to” UNCLOS is also suggested by domestic legislation, the DOS report notes. As an example it cites China’s 1999 Law on Marine Environmental Protection, which describes its geographical scope as extending to the country’s “internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf of the People’s Republic of China and other sea areas under the jurisdiction of the People’s Republic of China” (emphasis in the DOS report). According to the text, UNCLOS is restricted to maritime zones mentioned in the law, and not to any “other sea areas under the jurisdiction” of the PRC, and “perhaps” this is a reference to “areas where China considers that it has historic claims.” Again, we must remember that this could be understood in two different ways, either China making a claim based on historic facts (recognized to a limited degree by UNCLOS) or China laying down sovereignty over certain areas of the sea based on principles and rules outside UNCLOS, or outside the prevailing interpretation of UNCLOS.

Has China made a historic claim? Next the DOS report examines two issues: whether China has actually “Made a Historic Claim”, and whether it would “have Validity.” Concerning the former, the text states that “China has not actually made a cognizable claim to either ‘historic waters’ or ‘historic rights,’” the reasons being a lack of “international notoriety” and the statement in her 1958 Territorial Sea Declaration that “high seas” separate the Chinese mainland and coastal islands from “all other islands belonging to China”. The text admits that the expression “historic waters” appears in some Chinese legislation and statements, and actually cites some of them, but believes that this does not amount to “notoriety” to a degree sufficient to “at the very least” allow “other states” to “have the opportunity to deny any acquiescence with the claim by protest etc.” (Taken from C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal, (Leiden: Martinus Nijhoff Publishers, 2008), p. 145) since “no Chinese law, declaration, proclamation, or other official statement” exists “describing and putting the international community on notice of a historic claim.” The text dismisses references to “historic rights” in the 1998 EEZ and continental shelf law as “a savings clause” and “not a statement of a claim itself.” An additional reason put forward by the text is that these could be references to “China’s sovereignty claim to the islands, and not the waters.” The 1947 map does not constitute either, according to the DOS report, a claim, and furthermore even if one had been made, the fact it was published domestically “in the Chinese language” would not amount to “an act of sufficient international notoriety to have properly alerted the international community.” More generally, the text considers that no subsequent Chinese map can be treated as having made a claim either, since they all “lack the precision, clarity, and consistency that could convey the nature and scope of a maritime claim” and cites in support of this view the ICJ “statement of principle” in the Frontier Dispute case between Burkina Faso and Mali, which says that “Whether in frontier delimitations or international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.”

Read the next installment here.

Asia-Pacific, Territorial and Law of the Sea Disputes

US Department of State Seeks to Clarify Meaning of China’s 9-Dash Line Part 3

February 3, 2016 Guest Author Leave a comment

By Alex Calvo

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

Let us move to the three interpretations put forward by the US Department of State.

1.- “Dashed Line as Claim to Islands”

This would mean that all Beijing was claiming were the islands within the dashed lines, and that any resulting maritime spaces would be restricted to those recognized under UNCLOS and arising from Chinese sovereignty over these islands. The text notes that “It is not unusual to draw lines at sea on a map as an efficient and practical means to identify a group of islands”. In support of this interpretation one could take the map attached to the 2009 Notes Verbales and the accompanying text, which reads “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)”. The text notes that the references in the paragraph above to “sovereignty” over “adjacent” waters” may be interpreted as referring to a 12-nm belt of territorial sea, since international law recognizes territorial waters as being a sovereignty zone. In a similar vein, references to “sovereign rights and jurisdiction”, “relevant waters”, and “seabed and subsoil thereof”, would then be taken to concern the legal regime of the EEZ and the continental shelf, as defined by UNCLOS.

As possible evidence for this interpretation, the study cites some Chinese legislation, cartography, and statements. The former includes Article 2 of the 1992 territorial sea law, which claims a 12-nm territorial sea belt around the “Dongsha [Pratas] Islands, Xisha [Paracel] Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China”. This article reads “The PRC’s territorial sea refers to the waters adjacent to its territorial land. The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China. The PRC’s internal waters refer to the waters along the baseline of the territorial sea facing the land”. The Department of State also stresses that China’s 2011 Note Verbale states that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ), and Continental Shelf”, without laying down any other maritime claim. Concerning cartography, the study cites as an example the title of “the original 1930s dashed-line map, on which subsequent dashed-line maps were based”, which reads, “Map of the Chinese Islands in the South China Sea” (emphasis in the DOS study). With regard to Chinese statements, the study cites the country’s 1958 declaration on her territorial sea, which reads “and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas” (emphasis in the DOS study). The text argues that this reference to “high seas” means that China could not be claiming the entirety of the South China Sea, since should that have been the case there would have been no international waters between the Chinese mainland and her different islands in the region. This is a conclusion with which it is difficult to disagree, although we should not forget that it was 1958, with China having barely more than a coastal force rather than the present growing navy. Therefore, while the study’s conclusion seems correct, and precedent is indeed important in international law, it is also common to see countries change their stance as their relative power and capabilities evolve. Thus, if China had declared the whole of the South China Sea to be her national territory in 1958 this would have amounted to little more than wishful thinking, given among others the soon to expand US naval presence in the region and extensive basing arrangements. Now, 50 years later, with China developing a blue water navy, and the regional balance of power having evolved despite the US retaining a significant presence, Beijing can harbor greater ambitions.

Then US Secretary of State Hillary Clinton with her Filipino counterpart, Albert del Rosario, in June 2011. Washington supports Manila’s arbitration bid and rearmament, but takes no official position on her territorial claims, despite involving former American territory.

This section ends with the DOS study stating that should this interpretation be correct, then “the maritime claims provided for in China’s domestic laws could generally be interpreted to be consistent with the international law of the sea”. This is subject to two caveats, territorial claims by other coastal states over these islands, and Chinese ambiguity concerning the nature of certain geographical features, Beijing not having “clarified which features in the South China Sea it considers to be ‘islands’ (or, alternatively, submerged features) and also which, if any, ‘islands’ it considers to be ‘rocks’ that are not entitled to an EEZ or a continental shelf under paragraph 3 of Article 121 of the LOS Convention”. Some of these features, Scarborough Reef for example, are part of the arbitration proceedings initiated by the Philippines.

2.- “Dashed Line as a National Boundary”

This would mean that Beijing’s intention with the dashed line was to “indicate a national boundary between China and neighboring States”. As supporting evidence for this interpretation, the DOS report explains that “modern Chinese maps and atlases use a boundary symbol to depict the dashed line in the South China Sea”, adding that “the symbology on Chinese maps for land boundaries is the same as the symbology used for the dashes”. Map legends translate boundary symbols as “either ‘national boundary’ or ‘international boundary’ (国界, romanized as guojie)”. Chinese maps also employ “another boundary symbol, which is translated as ‘undefined’ national or international boundary (未定国界, weiding guojie)” but this is never employed for the dashed line.

The report stresses that, under international law, maritime boundaries must be laid down “by agreement (or judicial decision) between neighboring States”, unilateral determination not being acceptable. The text also notes that the “dashes also lack other important hallmarks of a maritime boundary, such as a published list of geographic coordinates and a continuous, unbroken line that separates the maritime space of two countries”. The latter is indeed a noteworthy point, since border lines would indeed seem to need to be continuous by their very nature, rather than just be made up of a number of dashes. This is one of the aspects making it difficult to fit Beijing’s claims with existing categories in the law of the sea. In addition, the report notes that they cannot be a limit to Chinese territorial waters, since they extend beyond 12 nautical miles, and neither can they be a claim to an EEZ, since “dashes 2, 3, and 8” are “beyond 200 nm from any Chinese-claimed land feature”. These last two aspects also make it difficult to see the dashed line as marking one of the categories recognized by UNCLOS. Moving beyond the law, however, and this is something that the DOS report does not address, a certain degree of ambiguity may be seen as beneficial by a state seeking to gradually secure a given maritime territory. Some voices have noted this may have been the US calculus in the San Francisco Treaty. Thus, the technical faults, from an international legal perspective, in China’s dotted line are not necessarily an obstacle to Beijing’s claims, from a practical perspective.

Read the next installment here.

Fostering the Discussion on Securing the Seas.