EEZ Does It

[don]

Balloon goes up over the South China Sea
Peter Lee

There were signs of a major escalation in US activity in the South China Sea - but not during the ASEAN meeting.

Back on July 13, I wrote about US frustration with successful People's Republic of China (PRC) efforts - symbolized by but not limited to the HYSY 981 drilling rig outrage-to defy the US campaign to deter PRC assertiveness in the South China Sea. Quote:

US South China Sea policy needs a reboot. To quote the Financial Times: "Our efforts to deter China [in the South China Sea] have clearly not worked," said a senior US official.

In 2010, the US justified its attention to the remote reaches of the SCS on the grounds of "a national interest in freedom of navigation.

[S]ince the PRC relies on freedom of navigation for commercial traffic to an existential degree (most of the traffic through the SCS is, after all, going to and from Chinese ports), there was an embarrassing dearth of Chinese offenses against freedom of navigation that compelled US action. ...

[Events] would seem to require that the definition of the US national interest in the South China Sea be redefined to enable more effective pushback, preferably pushback that carries the threat of the PRC's least-desired outcome: confrontation with US military forces ...

The Financial Times makes an interesting elision by stating "The Obama administration declared South China Sea a US 'national interest' in 2010," leaving out the rather important qualifier "in freedom of navigation".

Today, if the US is simply declaring a national interest "in the South China Sea" full stop, that would imply, well pretty much whatever the US wants it to imply. In practical terms, this means that the United States will have the luxury of acting unilaterally in its self-defined national interest, unconstrained by rigid considerations of international law (which the PRC, for the most part, carefully attempts to parse and the United States, by its failure to ratify the Law of the Sea convention, is on the back foot) or the position of ASEAN (which the PRC has, for the most part, been successful in splitting).

The US recently took another bite out of the SCS apple by calling for a construction ban in the South China Sea (the PRC has been dredging, expanding, and improving some of its island holdings in order to strengthen its sovereignty claims) ...

Apparently the United States has decided that ASEAN needs an extra push to come up with the proper anti-PRC policies and, even though the US is not a member of ASEAN, it will be more pro-active in trying to shape its policies and counter the PRC's attempts to divide and influence the forum.

Fastforward to mid-July, and Secretary of State John Kerry floated the construction "freeze" proposal at the ASEAN meeting in Myanmar with the support of the Philippines.

The scheme was DOA, Dead On Arrival, bracketed by unambiguous PRC rejection before, during, and after the meeting. ASEAN declined to mention the freeze proposal in its communique, opting for endorsement of the code of conduct negotiations instead.

Another unfortunate takeaway from the ASEAN meeting was the unwelcome suspicion that the United States has compromised its "honest broker" status to the point that the real "honest broker", ie the independent-minded power that can and must be wooed by all parties with genuine concessions in order to hammer out unity and workable compromises is now Indonesia.

Nevertheless, in its background briefing, the United States delegation declared victory: Clearly, we have succeeded in our mission, which is to try to seed the clouds of conversation. This apparently was not enough for some journalists:

Question: So coming back to what Matt was pressing on the freeze, I mean, that's not going to be agreed this time.

Senior Administration official: So I think that you want to -
Senior Administration official: That was never the expectation.
Senior Administration official:: Right.
Senior Administration official: Yeah. So the whole purpose was to shape the conversation, focus the conversation in the region on the behavior and the assertions that are occurring, and making sure that the pressure stays on those people making - those countries asserting their behavior.

Some headlines spun it the US way:

VOA: US Presents ASEAN Meeting as Setback for China
Bloomberg: China Thwarts US Bid to Reduce South China Sea Tensions

However, for the most part, the PRC rebuff and the lack of a positive outcome were acknowledged.

The US subsequently made the portentous announcement it would "monitor" developments in the South China Sea, a message, I suppose, that the US claims the right to promote its South China Sea agenda independent of what ASEAN desires to do - or not do.

As for the PRC, it announced a "dual track" of bilateral talks and negotiations with ASEAN over a code of conduct, and reaffirmed its rejection the freeze - and with it the validity of the US role as the "responsible adult" in the South China Sea.

Xinhua weighed in with a cutting commentary "A Calm South China Sea Needs No Flame Stoker", which reminded ASEAN that the previous pretext for US intervention hadn't panned out: "The US worry over maritime safety is unwarranted since the freedom of navigation has been fully guaranteed."

It concluded with a statement that, although Chicom propaganda, is distressingly close to the truth:

It is a painful reality that Uncle Sam has left too many places in chaos after it stepped in, as what people are witnessing now in Iraq, Syria and Libya.

The South China Sea should not be the next one.

Ouch.

The real fireworks, however, was provided by US Senators John McCain and Sheldon Whitehouse during a visit to Vietnam.

Vietnam, of course, is in play now. Reformist elements in the Vietnamese elite are taking the nationalist tack of criticizing the leadership for excessive obeisance to the PRC and, more discretely, advocating a tilt toward the US, pluralism, and a more open economy. Although the Vietnamese government eventually nixed a visit by the foreign minister to Washington to discuss closer coordination (presumably because the PRC withdrew theHYSY 981 rig), McCain and Whitehouse went to Vietnam to discuss a lifting of the US arms embargo and, presumably explore the alluring question of an eventual US return to Cam Ranh Bay.

During their visit, Vietnamese media reported on August 9 that Whitehouse made this rather remarkable statement:

At yesterday's press briefing, Tuoi Tre (Youth) newspaper asked Senator Sheldon Whitehouse for comments about the US's responses, considered by public opinion as rather strong, against China over the recent tension in the East Vietnam Sea.

Senator Whitehouse replied that exclusive economic zones (EEZs) of every country form a sustainable network of EEZs that have been established based on international conventions and laws, as well as on mutual understanding, which help avoid conflicts and maintain stability in EEZs.

Therefore, whenever a challenge appears and poses a threat to peace and stability in EEZs, then not only the US but also the entire world community will take action against the threat, the senator said. [emphasis added]As far as I have been able to determine, disputes about EEZ activities have been addressed bilaterally by coast guard and maritime patrol vessels, particularly in the South China Sea, where the PRC, Vietnam, and Philippines harass each other's fisherman and oil exploration vessels. Third parties, let alone the "entire world community" have never been involved.

Such a case has occurred and the US and other countries have responded against it, he added.

I am not familiar with the precedent cited by the senator.

When the United States committed naval vessels to make sure the Strait of Hormuz remained open in 2011-2012, it was acting on a very limited brief: the right of the world community under customary international law to keep open for "transit passage" a vital strait inside 12-mile territorial waters (not the EEZs) of Iran and Oman, for which no alternative existed.

Iran, on the other hand, tried to argue that a promise to observe "transit passage" rights was obligatory only to states that had ratified the UN Convention on the Law of the Sea (UNCLOS), which Iran and the United States both had not done. The US, obviously, chose to ignore Iran's objections, but the long-recognized need to ensure transit passage through critical straits also meant that the world gave Iran's position rather short shrift.

EEZs are a whole 'nuther thing than territorial waters, it would seem, a 200-nautical mile zone beyond the 12-mile limit recently defined by UNCLOS and reserved for economic exploitation by the state that can support a claim to it.

And I haven't seen any initiatives toward militarizing these disputes (though Vietnam claimed that PLAN vessels were protecting the HYSY 981).

As recently as March, judging by a Congressional Research Service report, the main US concern was that PRC EEZ disputes remain non-military, to prevent the US getting sucked into a conflict by virtue of its treaty obligations to Japan and the Philippines:

China's actions for asserting and defending its maritime territorial and exclusive economic zone (EEZ) claims in the East China (ECS) and South China Sea (SCS), particularly since late 2013, have heightened concerns among observers that ongoing disputes over these waters and some of the islands within them could lead to a crisis or conflict between China and a neighboring country such as Japan, the Philippines, or Vietnam, and that the United States could be drawn into such a crisis or conflict as a result of obligations the United States has under bilateral security treaties with Japan and the Philippines.

Apparently, that has changed, thanks to the PRC's aggressive adoption of non-military measures, from subsidizing and equipping its fishing fleet for South China Sea forays to plunking billion-dollar exploratory drilling rigs in contested EEZs, and the idea now is that the best way for Vietnam and the Philippines to push back might be by interposing US naval muscle.

As potential harbingers, US surveillance aircraft overflew Chinese maritime patrol vessels during the resupply of marines on the beached Philippine hulk Sierra Madre at Second Thomas Shoal in April 2014 (ramped up surveillance is considered to be an important weapon in "gray zone" crises, the term of art for confrontations that tiptoe to the brink of military conflict, but don't quite cross). In May, the USS Blue Ridge, the Seventh Fleet's flagship, ostentatiously sailed past the current PRC-Philippine hotspot, the Scarborough Shoal, and launched a helicopter to observe and photograph two PLAN warships in the vicinity.

Maybe in the future, US naval vessels will interpose themselves as Chinese maritime patrol vessels try to harass survey and drilling ships in disputed Philippine and Vietnamese EEZs; maybe the next time the HYSY 981 parks itself in contested waters, US ships will interdict its resupply.

Plenty of options

And the injection of US military factors into EEZ disputes might be justified under Senator Whitehouse's formulation that "challenges against the peace and stability of EEZs" are a threat that "the US and the entire world community" will act against.

Declaring a national mission to interfere in third-party EEZ disputes bring us, inevitably, into murky legal waters.

The United States, of course, has not signed UNCLOS. Instead, in 1983 the United States took the worldwide adoption of UNCLOS (by the PRC, among others) as an opportunity to invoke the UNCLOS 200 nautical mile exclusive economic zone formulation as "customary international law", enabling a unilateral proclamation of a 200 nautical mile EEZ by the United States.

The unilateral nature of the proclamation, and its legal separation from UNCLOS, was amusingly confirmed last year, when US House of Representatives Republicans embarked upon an initiative to name the US EEZ endowment, some 3.4 million square miles, as the "Ronald Wilson Reagan Exclusive Economic Zone" with the declaration that:

"The authority for President Reagan to issue his executive order [establishing the EEZ] did not come from the United Nations or from the Law of the Sea Treaty. It came from the sovereignty of the United States government, a concept that somehow seems to escape some members of this Congress," Rep. Tom McClintock (R-Calif.) said.

So, I assume, the ability to intervene in somebody else's EEZ dispute can also be presented by the US as a matter of "international customary law", a rather nebulous concept that renders moot the potentially constraining verbiage of the UNCLOS treaty.

I also suspect the US will see no difficulty in unilaterally declaring that US naval activities in the territorial waters of the Strait of Hormuz provide adequate precedent for the application of similar interpretations to an EEZ in the South China Sea. If the Chinese want to disagree, I suppose they are welcome to take their arguments to whatever pro-American venue chews over these disputes, digests them for years, and eventually spits out non-binding decisions.

It is always possible that Senator Whitehouse was talking through his hat in Vietnam but, given the presence of Senator McCain (who with Secretary of State John Kerry shares a close interest in nurturing the US-Vietnam relationship) and the simultaneous ASEAN confab in Myanmar, I consider his statement a metaphorical shot across the bow, as in (my words):

The PRC has chosen to slap aside Secretary Kerry's freeze initiative. Well ...

If, as anticipated, the Arbitral Commission rules in favor of the Philippines and tosses out the Nine Dash Line, and the People's Republic of China exercises its great power prerogative of ignoring the award and ignoring calls to submit its South China Sea EEZ claims to arbitration under the UNCLOS formula, then the United States will exercise its superpower prerogative of imposing its novel definition of customary international law inside EEZs on the SCS and start messing with China's stuff.

I will add the observation that I expect the possible injection of US Navy in local EEZ disputes will probably feature non-stop serial and parallel harassment of US naval vessels by agitated and indifferently skippered Chinese maritime patrol vessels, fishing vessels, and whatnot. This is exactly the kind of "gray zone" headache that the US Navy would like to avoid; but I also think the Navy wants a 300-ship presence in the Pacific and realizes it isn't going to get it by shirking ignominious and onerous police duty demanded by the White House.

As for the PRC, under the traditional understanding of its foreign policy it would realize that it is outgunned by the US and its best hope for advantage lay in sidestepping confrontation with the US, temporizing in its dealings with ASEAN, and trying to buy and bully its way to advantage in bilateral exchanges with its smaller neighbors. Ordinarily, in other words, the PRC would quail at the prospect of facing the US Navy and dial down its behavior accordingly.

Unfortunately, these are not ordinary times.

The PRC did invite President Obama to share the fruits of the "new great power relationship" in a recent spate of editorials, but it seems unlikely that they expected the US to take them up on it. More likely, it was a propaganda gambit like Kerry's freeze, along the lines of "We tried to be nice, but ... "

The PRC can reasonably entertain the expectation that, in January 2017, Hillary Clinton, architect of the pivot to Asia, will be president and will enter office seeing the need to reassert the US role in Asia through some aggressive moves against China, certainly in the South China Sea, maybe on the issues of standing shoulder-to-shoulder with Japan to block Chinese vessels from the territorial waters of the Senkakus, maybe even in support for Taiwan independence and Hong Kong democracy.

Meanwhile, President Obama is slogging through a quagmire of crises in Ukraine and Iraq (and the election fiasco in Afghanistan) that has spread his resources to the point he can't even spare a thought for the collapse of Libya; has induced serious alliance fatigue, especially in Europe, thanks to an all-in Ukraine policy whose motto is, literally, "F*ck the EU", and the dismal campaign in Gaza; and, most importantly, has pushed Russia, normally an arms-length peer, into the arms of the PRC as a diplomatic, economic, and security ally.

In the next few weeks, China and the world may get a chance to see if Russia, not quite the sturdiest of America's antagonists, intervenes in Ukraine and successfully defies the sanctions/subversion/soft and hard power pressure of the Western democratic alliance.

The combination of opportunity, a closing time window, and the prospect of worse to come is not a recipe for restraint by the PRC.

I'm not saying that the PLAN will come out blasting away at the Seventh Fleet; but I can imagine a worst case scenario of spate of ugly and destabilizing incidents, obstructions, collisions, protests, sanctions ... and even, though it is difficult to imagine today, a demand, not a request, that the United States abandon its new ASEAN beachhead, and remove itself from EEZ disputes between the PRC and its neighbors.

On balance, I don't think the United States is ready for its Suez moment - a humiliating climbdown, probably in the South China Sea, that signals the surrender of imperial pretensions. I also think Xi Jinping is focused on securing his rule and advancing his domestic political and economic agenda and will decide not to add a major confrontation with the United States to his list of challenges.

However, a storm is brewing over the South China Sea. And the United States and China will both have a hand in deciding where and when it will break.

Peter Lee writes on East and South Asian affairs and their intersection with US foreign policy.

[don]

Re: EEZ Does It

'Paramilitarizing’ the South China Sea By Peter Lee Usually, my predictions don't pan out so quickly. On August 11, I looked at the implications of a statement by US Senator Sheldon Whitehouse in Vietnam that used a striking reinterpretation of the global stake in maritime exclusive economic zones (EEZs) to justify escalated United States activity in the South China Sea (SCS). The senator's gambit apparently drew on the US conclusion that efforts to deter the People’s Republic of China from salami-slicing in the SCS have failed and it is time for a more aggressive, and I might add extremely novel, doctrine to justify a more forward US posture. Quote: At yesterday's press briefing, Tuoi Tre (Youth) newspaper asked Senator Sheldon Whitehouse for comments about the US's responses, considered by public opinion as rather strong, against China over the recent tension in the East Vietnam Sea. Senator Whitehouse replied that exclusive economic zones (EEZs) of every country form a sustainable network of EEZs that have been established based on international conventions and laws, as well as on mutual understanding, which help avoid conflicts and maintain stability in EEZs. Therefore, whenever a challenge appears and poses a threat to peace and stability in EEZs, then not only the US but also the entire world community will take action against the threat, the senator said. [emphasis added] Such a case has occurred and the US and other countries have responded against it, he added. … [Thanks] to the PRC's aggressive adoption of non-military measures, from subsidizing and equipping its fishing fleet for South China Sea forays to plunking billion-dollar exploratory drilling rigs in contested EEZs … the idea now is that the best way for Vietnam and the Philippines to push back might be by interposing US naval muscle. As potential harbingers, US surveillance aircraft overflew Chinese maritime patrol vessels during the resupply of marines on the beached Philippine hulk Sierra Madre at Second Thomas Shoal in April 2014 (amped up surveillance is considered to be an important weapon in "gray zone" crises, the term of art for confrontations that tiptoe to the brink of military conflict, but don't quite cross). In May, the USS Blue Ridge, the Seventh Fleet's flagship, ostentatiously sailed past the current PRC-Philippine hot spot, the Scarborough Shoal, and launched a helicopter to observe and photograph two PLAN warships in the vicinity. Maybe in the future US naval vessels interpose themselves as Chinese maritime patrol vessels try to harass survey and drilling ships in disputed Philippine and Vietnamese EEZs; maybe the next time the HYSY 981 [a PRC exploration oil rig] parks itself in contested waters, US ships interdict its resupply. Plenty of options. Now Carlton Thayer, a doyen of Asian maritime disputes, has weighed in with his proposal for the "paramilitarization" of South China Sea frictions, "fleshing out", as he puts it, a bare bones idea by retired US diplomat David Brown (I am assuming the David Brown in question is this gentleman at Johns Hopkins, who previously served in a variety of high-level diplomatic and academic Asia-related capacities). Dr Thayer, it can be said, is a friendly interlocutor to the Philippines and in particular to the aggressive anti-PRC strategy of its foreign minister, Alberto Del Rosario. In 2012, when Del Rosario heatedly confronted Cambodia and other members of the Association of Southeast Asian Nations disinclined to make an issue of the China's outrages in the South China Sea in a closed ASEAN meeting, it was Dr Thayer who was able toreveal confidential details to the world, including Del Rosario's dramatic use of the Nazi analogy ("First they came for the … etc.") to decry the passivity of ASEAN with respect to the plight of the Philippines over Chinese bullying at the Scarborough Shoal. My personal feeling is that in 2014 the PRC hoped to use theHYSY 981 gambit (the drilling rig was deployed earlier this year off the Paracel Islands, whose possession by China is disputed by Vietnam) to trade Vietnam's acknowledgment of Chinese sovereignty of the Paracels for PRC's shift away from the nine-dash-line (the PRC’s present rough delineation of its claims in the South China Sea) to an United Nations Convention of the Law of the Sea / EEZ linked formulation for bilateral settlement of maritime disputes. Well, that didn't happen. Both Vietnam and the Philippines are leaning on the idea of some combination of ASEAN, regional, plus US pushback to level the playing field with the PRC. The PRC, for its part, seems be backpedaling on its hints of abandoning the nine-dash line, and it is more likely that China will meet the expected repudiation of the nine-dash line by the UNCLOS Arbitration Commission with resolute defiance … and ASEAN will probably let it slide, to the detriment, especially, of the Philippine government's attempt to sideline the PRC and wrest energy riches from the seabed near the contested waters of Reed Bank. Judging by Senator Whitehouse’s statement and Mr Brown and Dr Thayer's proposals, it seems that hardliners in the US foreign policy apparatus, perhaps gazing longingly beyond President Barack Obama and his sea of troubles to a more militant Hillary Clinton administration, feel there's an app for this: "paramilitarization". As Dr Thayer describes it: In present circumstances, a formal track one trilateral arrangement should be negotiated and serve as a venue for working out a multilateral strategy to deter China. Such a strategy should embrace Vietnam, the Philippines, Japan and the United States and involve stepped up cooperation among their coast guards. Japan has already reached out to the Philippines and Vietnam. The United States and Vietnam should expedite the agreement for cooperation between their Coast Guards. So far the training has taken place on land in the form of short courses. The US Coast Guard should be deployed to Vietnamese waters for joint training and involve the exchange of observers on each other's ships. Vietnam recently joined the Proliferation Security Initiative. This provides an opportunity for the United States to assist Vietnam further develop its capacity for maritime domain awareness. … In addition, US Navy maritime surveillance aircraft based in the Philippines under the recent agreement on enhanced defense cooperation could be deployed to Vietnam on a temporary basis. They could conduct joint maritime surveillance missions with their Vietnamese counterparts. US military personnel could fly on Vietnamese reconnaissance planes as observers, and vice versa. Regional security analysts expect China to mount aggressive naval displays in the South China Sea every year from May to August moving forward. This provides an opportunity for the United States and Japan to organize a series of continuing maritime exercises and surveillance flights with Vietnam and the Philippines just prior to the arrival of Chinese forces and throughout the period from April to August each year. The details of all operations should be completely transparent to all regional states including China. An indirect strategy provides the means for the United States to give practical expression to its declaratory policy of opposing intimidation and coercion to settle territorial disputes. An indirect strategy does not require the United States to directly confront China. This strategy puts the onus on China to decide the risk of confronting mixed formations of naval vessels and aircraft involving the United States, Japan, the Philippines and Vietnam. These combined maritime and air forces would operate in international waters and airspace that transverse China's nine-dash line. The objective would be to maintain a continuous naval and air presence to deter China from using intimidation and coercion against Vietnam and the Philippines. Deterrence could be promoted by interchanging the naval and aircrews in all exercises. The scope and intensity of these exercises could be altered in response to the level of tensions. For those of you keeping score, PRC maritime surveillance vessels, charged with dealings outside the 12 nautical mile territorial waters, are currently not externally armed, in keeping with the PRC's "non-militarized" strategy, a state of affairs I suspect the US finds alluring but at the same time, because it undercuts the narrative of the armed Chinese menace, somewhat frustrating. US Coast Guard cutters carry a variety of cannon and other armament. The "paramilitarization" proposal is, to me, wrong on many levels. I address the rather shaky legal basis for third parties to insert themselves in bilateral EEZ disputes in my original post. There is, of course, the additional problem that the United States originally hung its "pivot to Asia" on "the US interest in freedom of navigation in the South China Seas" and the "Whitehouse doctrine" could be uncharitably described as "impeding freedom of navigation by people we don't like in the South China Seas to advance a US agenda". But sweeping aside these minor hypocrisies is a matter of "kiss my hand" ease for the experienced US diplomatic and media apparatus, and need not detain us. The real proof of the pudding will come if and when a Chinese maritime surveillance vessel either a) collides with, b) rams, or c) is, while engaged in a) or b) shot to pieces by a US coast guard or naval vessel while attempting to execute its self-defined responsibilities inside China's self-defined non-territorial waters that also happen to be around a flotilla-infested Philippine or Vietnam-sanctioned oil rig. Then the president of the United States gets to decide if he or she wants a collapse of diplomatic relations with the People's Republic of China and a full-bore economic/sanctions war, kick the PRC to the curb in order to double down on the Philippines and Vietnam as America's most important relationships in Asia, and for that matter, explain to the US public it is a matter of pressing national interest for the US Coast Guard to play chicken of the sea with Chinese ships thousands of miles from home for the sake of a Philippine or Vietnamese hydrocarbon play. That's a prospect from which even a president Clinton, architect of the pivot to Asia and godmother of mischief in the South China Sea, might quail. The comforting assumption behind "paramilitarization" is an old chestnut: that it's really low cost/low risk because the PRC is fully aware of US military superiority, and will inevitably back down if faced with the potential for a direct confrontation with the US military or "paramilitary" forces. As Mr Brown put it (for the record, his proposal, unlike Dr Thayer's, restricted itself to the employment of US and regional coast guard vessels - see * below): For public consumption, these exercises can focus on hands-on training in search and rescue, interdiction of smugglers or pirates, defending against foreign incursions into territorial waters, etc. The United States and Japan should urge Australia, India, Indonesia, Malaysia, and Singapore also to join in these exercises. Elements of the flotilla should remain at sea from March through July, ready to stymie another Chinese deployment simply by getting in the way. Such a concerted show of paramilitary strength would demonstrate that the littoral nations and their friends will no longer tolerate China's salami-slicing tactics. There is a downside risk of deliberate collisions and the use of water cannons, tactics employed by China against Vietnam this summer. However, the more likely scenario is that Chinese vessels will choose to avoid confrontation on equal or near-equal terms, in effect resetting Chinese tactical assumptions and opening the way for more rational and mutually respectful outcomes. But this ain't 1997 or even 2009. Through the state media and, I would expect, in private discussions, the PRC has stated repeatedly and unambiguously that it does not allow the United States any legitimate role to define or enforce maritime policy in the South China Sea. The HYSY 981 escapade was merely the word made flesh, the icing on the cake, the steel middle finger, so to speak. In 2014, it will take a war for China to acknowledge US dominion over the South China Sea. And that's a war, in my opinion - and I suspect, in China's opinion - the United States is not prepared to fight. * It would seem rather counterintuitive to place the South China Sea in the US Coast Guard (USCG) scope of responsibilities. However, the (USCG) goes where the Commander-in-Chief says it should go. My father enlisted in the Coast Guard in World War II with the expectation his command would be harassing U-boats off the Atlantic Coast and instead found himself seconded to the US invasion effort and landing troops in North Africa, Italy, and at Normandy on D-Day; so the coast guard does sometimes wander rather far afield, most recently to the Persian Gulf to support the Iraq wars.

[photon555]

Re: EEZ Does It

Thanks for these articles, Don. It should be noted that while the PLAN Navy is inferior to the USN, the US logistics tail is a long one, even with bases on allied shores. Also, the PLA has a supply of coastal based anti-shipping munitions. More importantly, this situation looks like a setup for another accidental collision or engagement between US and Chinese assets as happened about 15 years ago with the US surveillance aircraft and the bold Chinese fighter pilot who got a little too close. Just like the old adage, if you give an eighteen year old a rifle and put him in the wrong place and the wrong time, he can make your policy with just one bullet. Is that what the US leaders intend; a policy of war started by accident?

[don]

Re: EEZ Does It

US flags China as a maritime outlaw
By Peter Lee

A think tank called CNA recently issued a 140-page report titled "China versus Vietnam: An Analysis of the Competing Claims in the South China Sea" authored by Raul (Pete) Pedrozo. [1] It provides a further legal rationale for growing US efforts to inject itself into South China Sea exclusive economic zone (EEZ) disputes on behalf of Vietnam and against the People's Republic of China.

A few reasons why attention should be paid.

First, the institution.

CNA is described as a non-profit corporation. A fuller description would be a "US Navy analytic division dating to 1942 that works exclusively for and is funded exclusively by the US government but was corporatized in the 1990s so it could dip its beak into non-DoD government work through a division called the Institute for Public Research".

You could say that "CNA" stands for "Center for Naval Analyses", the name of its antecedent organization. But you'd be wrong, according to CNA, in a "note to reporters and editors":CNA is not an acronym and is correctly referenced as "CNA Corporation, a non-profit research and analysis organization located in Arlington, VA.

So, consider CNA a meaningless collection of letters for a center that does analyses for the Navy and Marine Corps, whose main job is studying systems, tactical, and strategic issues for the USN and USMC. It has one unique regional focus, a "China Studies" division of 20 or so in-house analysts buttressed by "an extensive network of subject-matter experts from universities, government, and the private sector from around the world".

Second, the author, a "subject-matter expert", Captain Pedrozo:

Captain Raul (Pete) Pedrozo, US. Navy (Ret.). Former Professor of International Law, US. Naval War College; Staff Judge Advocate, US Pacific Command; and Special Assistant to the Under Secretary of Defense for Policy.

Fans of PRC maritime disputes are or should be quite familiar with the work of Captain Pedrozo.

When the PRC harassed the US naval survey vessel USNS Impeccable in 2009 and tried to assert that military surveillance inside the PRC EEZ was a violation of the UN Convention of the Law of the Sea, Captain Pedrozo produced highly important opinions, Close Encounters at Sea: the USNS Impeccable Incident and Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China's Exclusive Economic Zone. [2]

In these documents, Captain Pedrozo made a point of declaring that the USNS Impeccable was not engaged in any sort of anodyne mapping exercises, but was actually conducted military surveillance against PLAN subs, thereby exempting the Impeccable from any UNCLOS obligations to butt out of the PRC EEZ. This argument, judging by the recent dispatch of a PLAN surveillance into the US EEZ during RIMPAC, has apparently won the PRC's acceptance.

Captain Pedrozo's arguments that the PRC was improperly threatening legal military (not commercial) activities inside the PRC EEZ provided the basis for Secretary of State Hillary Clinton's declaration at ASEAN in 2010 that the US had a national interest in protecting freedom of navigation in the South China Sea, and got the whole "pivot to Asia" ball rolling.

Captain Pedrozo, it is safe to say, is a big gun in the anti-PRC lawfare arsenal. In passing, it should be noted he is no friend of the PRC or its maritime pretensions.

Rather amusingly, in 2012 he recommended against against the US government concluding a agreement with the PRC to guard against collisions of naval vessels, largely on the novel grounds that it would encourage what might be termed "excessive Chinese uppitiness":

[A]lthough an INCSEA [Incidents at Sea] agreement could, in theory, reduce the possibility of miscalculation during un-alerted sea encounters between US. and Chinese naval and air forces, there are many reasons that the United States should not pursue such an arrangement. First, unlike the Soviet Navy, the PLA Navy is not a "blue water" navy with global reach and responsibilities. Elevating the PLA Navy to such a stature would not be in the best interests of the United States… [A]n INCSEA agreement with the PRC would significantly enhance the stature of the PLA Navy by suggesting it was a naval power on par with US. and former Soviet Navies . It would also force the US. Navy to treat the PLA Navy as an equal, something which it clearly is not. [3]

Rather less amusingly and, I suppose, considerably more significantly, lack of an INCSEA agreement also will increase US Navy latitude in peremptorily brushing aside PLAN ships during the maritime confrontations that, if advocates of a more forward US military posture in PRC's maritime sphere prevail, will becoming more and more common in the upcoming years.

Third, the subject matter.

The terminally FUBAR sovereignty issues of the Spratly Islands do receive a thorough parsing, but the main event is the Paracels, the cluster of islands south of Hainan, near Vietnam, completely occupied by the PRC, disputed by Vietnam, and the locale in which the PRC parked the HYSY 981 rig, partly as a signal that the US military presence in the South China Sea was, by Chinese estimation, neither justifiable nor necessary.

Fourth, an interesting question begged by the report, and actually raised in the foreword, by the Project Director, Michael McDevitt:

Importantly, this analysis of Vietnamese claims versus Chinese claims to the Paracel and Spratly archipelagoes was not undertaken as a prelude to a recommendation that the United States depart from its long held position of not taking a position on competing sovereignty claims in the South China Sea. That is not the intent, nor is it one of the recommendations of the project.

Yeah, so if the US government doesn't take a position on sovereignty claims, why did the top Navy think tank retain the top Navy sea lawyer (now retired) to crank out 140 pages of densely argued and heavily cited verbiage on the topic?

Fifth, the conclusion, a tenacious if not tendentious rebuttal of PRC claims and an unambiguous assertion by Captain Pedrozo of the superiority of Vietnamese claims to both the Paracels and the Spratlys.

Claims, I might add, that are not exactly a slam dunk, as McDevitt acknowledges in his foreword:

The Pedrozo analysis differs in part from two other third party analyses, one by Dr. Marwyn S. Samuels, an American scholar, who wrote the first detailed study on the origins of the disputes among China, Vietnam and in the Philippines. A meticulous scholar who used Vietnam and Chinese sources, his Contest for the South China, holds up very well some 40 years later. Samuels concluded that China had the better claim to the Paracels, but that China's claim to the Spratly's was "highly questionable." His judgments were partially echoed by Australian scholar Dr. Greg Austin, who has legal training. In his well?regarded China's Ocean Frontier, published in 1998. Austin found that China had "superior rights in the Paracels," but the legal complexity of the disputed Spratly claims meant that, "PRC claims to the entire Spratly group are at least equal to any other.

Pedrozo's findings are supported by Professor Monique Chemillier Gendreau in her work,Sovereignty over the Paracel and Spratly Islands. Professor Chemillier Gendreau is a legal scholar and Professor Emeritus at Paris University Diderot.

In reviewing all of these works, it is clear to me that in the unlikely event these claims are ever taken to the International Court of Justice to resolve the disputes over sovereignty the process will be long and difficult. None of the claimants has what might be called an "open and shut" legal case - although the consensus among scholars seems to be that China's claims in the Spratlys are weaker than those to the Paracels.

The reality on the ground is that China has occupied the entire Paracel group for 40 years, and short of military action by Vietnam to recapture the archipelago, will never leave.

So, despite US government policy of not taking sides in the South China Sea sovereignty issue, a US government think tank tasks top Navy lawyer to investigate the issue, and he comes up with his own revisionist take, assigning sovereignty to the Vietnamese for islands the PRC "will never leave".

Whassup?

One proximate motive, it can be confidently advanced, is that somebody within the US military establishment wanted to give aid and comfort to Vietnam in its struggle with the PRC (and in support of the burgeoning reform faction inside the Vietnamese Communist Party elite favoring rapprochement with the United States and a concerted anti-China policy).

The PRC, in parking the HYSY 981 had cannily advanced EEZ/UNCLOS based arguments for the legality of the location. By the PRC's preferred formula, it was within a few miles of Triton Island, the uninhabited spot of land in the southwest corner of the Paracel archipelago and therefore sheltered by the EEZ of the Paracel "territorial sea", a geographic unity formed out of a scattering of tiny islands within an excessively large body of water with a large unitary EEZ that is, by many interpretations, non-kosher under UNCLOS.

But even if the "territorial sea" was disregarded, the rig was still within 200 nautical miles of Woody Isle, the inhabited "capital" of the PRC's South China Sea empire, which the Vietnamese themselves had admitted deserved EEZ treatment.

But Captain Pedrozo adopts the argument that Vietnam, throughout the tangled strands of French occupation, Japanese occupation, French & KMT reoccupation, decolonization, civil war, the extinction of South Vietnam, and the rise of the People's Republic of Vietnam, had maintained sovereignty over the Paracels. When the PRC occupied the Paracels after a series of bloody skirmishes with Vietnamese forces in the 1970s, it was engaged in conquest, something that has been outlawed as a basis for territorial acquisition by signatories to the UN Charter. Therefore, the PRC occupation of the Paracels can never be legalized unless Vietnam cedes the archipelago to the PRC.

No legal sovereignty, no EEZ. No EEZ, the rig is illegal.

In a comment to an article Captain Pedrozo found excessively conciliatory to the PRC, Captain Pedrozo provided a clear statement of the linkage between sovereignty issues and EEZs in the South China Sea:

China does not have valid territorial claims to the South China Sea islands. To suggest that Beijing should be permitted to claim an exclusive economic zone from these islands is counterproductive and will put China one step closer to achieving de facto control of the South China Sea. ASEAN nations can stand by and allow China to incrementally solidify its maritime claims in the South China Sea through threats and coercion or they can stand up to Chinese brinkmanship before it's too late. [4]

As to more fundamental reasons why the US defense establishment were willing to ignore US policy on neutrality in South China Sea sovereignty issues and crank out 140 pages of pro bono lawyering on behalf of Vietnam, I will put on my tinfoil hat and advance the following explanation.

My personal feeling is that the PRC was trying to evolve beyond the foolishness of the nine-dash-line and normalize its maritime boundaries in the South China Sea along the lines of sovereignty + UNCLOS + EEZs, especially in anticipation that the UNCLOS Arbitral Commission will probably support the Philippine position on the line's legal insupportability.

The PRC hoped to come to a separate understanding with Vietnam on the Paracels issue, thereby isolating the Philippines as the PRC's crankiest antagonist in the South China Sea, and also demonstrating that the US had zero influence on PRC economic activities in that sea.

So the PRC sent in the HYSY 981. Whether the appearance of the rig was an unannounced outrage, or whether the PRC actually did some preliminary spadework inside the Vietnamese government (including offering some economic incentives for an agreeable attitude) and the HYSY 981 was a planned escalation is an interesting subject for further research.

In any case, it didn't work. The Vietnamese regime was affronted enough-and expressions of moral support from the US, Philippines, and Japan enthusiastic enough-for the HYSY 981gambit to be thoroughly excoriated.

As to US thinking on the whole South China Sea issue, beyond giving aid and comfort to Vietnam, I suspect that there may be a rather Machiavellian overall strategy at work.

If the PRC succeeds in its long-standing goal of normalizing its South China Sea disputes on favorable terms on a bilateral basis and peace breaks out in the South China Sea, the United States is deprived of a pretext for involvement and an important point of leverage against the PRC.

By a thoroughgoing repudiation of the legality of PRC claims of sovereignty over the Paracels and Spratlys, the US position exposes any PRC EEZ-based South China Sea strategy to increased risks.

If China has to defy the world in the South China Sea, it's perhaps easier to defiantly hold the nine-dash-line than it is to immerse itself in a legal tangle to try and redraw EEZs with a group of angry and emboldened interlocutors based on questionable sovereignty claims. Therefore, the PRC will think twice about abandoning its long-standing nine-dash-line defense of its maritime claims - and there are indications it already has.

Good news for the United States, in my opinion, if China is unable to shake the nine-dash-line incubus. More conflict, more rancor, better PR, ample opportunities for the United States to step in as part of the international community "protecting the EEZ system", an extremely novel and significantly escalatory doctrine Senator Sheldon Whitehouse advanced during his visit to Vietnam with Senator John McCain. [5]

Take Whitehouse's declaration that the United States is the protector of the world EEZ regime, add Pedrozo's determination that the PRC has no sovereignty or EEZ rights in the South China Sea, and we have a fresh strategic and legal rationale for active US involvement in SCS EEZ disputes.

Or, to put it less charitably, combine dubious US doctrine and bullshit US lawyering (and the predictable assistance of a complaisant Western press and compliant allies) and the United States can unilaterally declare a compelling national interest to intervene in bilateral economic disputes thousands of miles from home ... and declare China an outlaw in its own maritime backyard!

That precious core interest in the South China Seas isn't yours, Mr Chicom. It's America's. Bwahahaha!

Clever ... if "clever" is defined as "institutionalizing conflict in the South China Sea instead of resolving it" and "ignoring the fact that national and international forces that cannot be reversed or controlled have been set in motion".

This might not turn out to be the US leadership for whichthe Association of Southeast Asian Nations is notoriously pining.

As to whether this is a US government stratagem, or just an initiative by the growing number of China hawks in the US military/security establishment, I guess time will tell. But both PRC and US hawks are stepping up their game in response to the perceived drift of the distracted Obama administration.

On the occasion of a close fly by by a Chinese fighter against a US surveillance plane (perhaps engaged in run of the mill surveillance flight but perhaps encroaching on a PLA military exercise), the Washington Times' Bill Gertz presented a hawks-eye view of USN China policy:

The US-China close encounter also is a setback for Adm. Samuel Locklear, commander of the US Pacific Command, who has been leading Obama administration efforts to develop closer relations with the Chinese military.

Locklear has sought to play down the growing military threat from China as part of efforts to develop closer cooperation with the Chinese military.

The commander's dovish policies are being opposed by some in the Pentagon and Air Force who are concerned that the conciliatory approach will appease the Chinese at a time when Beijing has made aggressive territorial claims in the East China Sea and South China Seas. [6]

The hawk recipe is fighter plane escorts for surveillance aircraft, a recapitulation of the "paramilitarization" of disputes with China (by interposing US military assets between PRC ships and Vietnamese and Philippine vessels) that was proposed by Carlyle Thayer in the South China Sea, [7] a remedy that I think we'll be seeing more and more.

In any case, elements within the US government/think tank universe have developed: 1. the legal justification (the Pedrozo analysis); 2. the doctrinal imperative (what I call the Whitehouse Doctrine), and 3. the operational tactics ("paramilitarization") to confront the PRC as an EEZ outlaw in the South China Sea.

How and when this strategy is implemented is now a matter of speculation only. But, as PRC strength waxes and the US government sees its window of opportunity for effective rollback inexorably closing in the South China Sea, I think something will happen sooner rather than later.

Notes:
1. See here, August 18, 2014.
2. See here, March, 2010.
3. See here, March 7, 2012.
4. See here, March 27, 2014.
5. See here.
6. See here, August 21, 2014. 7. See here.

Peter Lee writes on East and South Asian affairs and their intersection with US foreign policy.

[Shakespear]

Re: EEZ Does It

The PRC hoped to come to a separate understanding with Vietnam on the Paracels issue, thereby isolating the Philippines as the PRC's crankiest antagonist in the South China Sea, and also demonstrating that the US had zero influence on PRC economic activities in that sea.

I suspect that is the objective of the this chess game.

[don]

Re: EEZ Does It

The pieces are moving.