While the United States has always been a Pacific nation, a key factor in the U.S. rebalance to the Asia-Pacific has been the ongoing cycle of tensions stemming from maritime disputes in the South and East China seas between China and other nations in the region. These have recently played out in places that heretofore have not been well known, such as Scarborough Reef and Second Thomas Shoal in the South China Sea and the Senkaku Islands in the East China Sea. Prior to those recent flash points, tensions have been ongoing and persistent over other maritime features, such as the Spratly Islands in the central part of the South China Sea and the Paracel Islands in the northern part.
The Spratlys are claimed in their entirety by China, Taiwan, Vietnam, and partially by Malaysia and the Philippines. The Paracels are claimed by China, Taiwan, and Vietnam, but are occupied exclusively by China.1 In light of the increased activity and associated tensions in the region relative to the numerous maritime disputes, four key points have emerged that provide a framework for a viable long-term resolution.
• International law remains an essential tool to resolve disputes between states.
• Existing institutional structures are in place to promote cooperation among countries in the region.
• State action is important, and specific steps can be taken to reduce regional tensions.
• U.S. policy must continue to ensure that the full range of rights outlined in the freedoms of navigation and overflight, as codified in the United Nations Convention on the Law of the Sea (UNCLOS), is maintained on a global basis.
International law remains essential in addressing the range of complex issues in the South and East China seas. Regional disputes can be grouped into three categories: a) Territorial claims to islands, including the previously mentioned Spratly, Paracel, and Senkaku islands; b) Excessive assertions of maritime jurisdiction by coastal states, such as exclusive economic zone (EEZ) claims, from mere rocks or China’s nine-dash line map encompassing most of the South China Sea; and c) Competition over natural resources, including hydrocarbons and fishing stocks. The emphasis by the United States and others in the region on a rules-based approach is the best course to not only maintain peace and stability as these disputes play out, but also to provide a guide for their resolution.
Former Secretary of State Hillary Clinton highlighted this rules-based narrative on 23 July 2010 in Hanoi, where she was the U.S. representative at the 17th ASEAN Regional Forum. Secretary Clinton noted that the United States has a national interest in the freedom of navigation, open access to Asia’s maritime commons, and respect for international law in the South China Sea.2 In her watershed statement, she expressed support for a “collaborative diplomatic process.” She also pressed for claimants to base their territorial claims on legitimate claims to land features, which was an indirect reference and challenge to China’s nine-dash line.3
‘China Off-Guard’
At the time, these remarks and those of other countries participating in the forum apparently caught China off-guard. Its immediate response was that the South China Sea was peaceful, and it cautioned against internationalizing dispute issues there. China has continued to discourage a role for the United States and other user maritime states in South China Sea disputes.
Similar to Secretary Clinton’s comments, former Secretary of Defense Leon Panetta, in several public statements, urged China and other countries involved in territorial disputes to engage in a process through which they can be resolved peacefully. He encouraged “a rules-based international order that promotes stability, that promotes security, and that promotes safety.”4 This theme has been carried on by subsequent secretaries of State and Defense. On 17 December 2013, during a briefing with Philippines Foreign Affairs Secretary Albert del Rosario, Secretary of State John Kerry reaffirmed in Manila that claimants in the South China Sea have a responsibility to conform their claims in accordance with international law.5
Arbitration Between the Philippines and China
Structures and mechanisms that permit this rules-based approach to work are already in place. These include institutional bodies such as ASEAN, treaty law such as UNCLOS, and international tribunals such as the International Court of Justice and the International Tribunal for the Law of the Sea. One of the bright spots in international law jurisprudence is the arbitration between the Philippines and China. Filed more than a year ago on 22 January 2013, the Philippines seeks to use arbitral proceedings under UNCLOS to challenge the legitimacy of China’s nine-dash line claim, as well as its claims to maritime entitlements from rocks or low-tide elevations.
The arbitration panel set a late March 2014 filing date for a brief from the Philippines to address issues related to jurisdiction, admissibility of the Philippine claim, and merits of the dispute. The five-member panel is chaired by Judge Thomas Mensah, who was a judge on the International Tribunal for the Law of the Sea from 1996–2005, and the tribunal’s first president.6 With a likely ruling in 2015, the substantive outcome and response by the parties has the potential to be a seminal and formative event in the region. A ruling may not only remove any veneer of legitimacy to China’s nine-dash line claim, but may also encourage other regional states to seek resolution through similar judicial mechanisms.
State actions promoting adherence to law are invaluable. The following specific steps would be particularly helpful in promoting international-law norms. First, all claimants in the region should clarify their maritime claims, taking into account the UNCLOS rules related to maritime entitlements.7 Of note, Vietnam and the Philippines have made efforts in recent years to perfect their claims. Second, as Assistant Secretary of State Danny Russell testified before Congress in February 2014, China should clarify to the international community precisely what its nine-dash line means.8 He stated that “[a]ny Chinese claim to maritime rights not based on claimed land features would be inconsistent with international law. China could highlight its respect for international law by clarifying or adjusting its claim to bring it into accordance with international law of the sea.”
Chief of Naval Operations Admiral Jonathan Greenert recently echoed Secretary Russell’s sentiments by stating the nine-dash line does not appear to be based on “geography, international agreements, international norms, [or] international policy.”9 In so clarifying its meaning, China and the regional states would have a stronger basis for more constructive dialogue, and it would remove much of the suspicion that countries harbor relative to the questionable nine-dash-line claim.
Third, work on the Code of Conduct should continue with far more alacrity between all the parties. Completed in 2002, the Declaration of Conduct was a useful catalyst in codifying important principles, including agreement to exercise self-restraint in the conduct of activities that would complicate or escalate disputes in the South China Sea and to affirmatively undertake ways to resolve their disputes by peaceful means, without resorting to use of force. The declaration, almost presciently, specifically pointed to the adoption of a Code of Conduct as a tool to further promote peace and stability in the region. Unless such a code is finalized, the parties will continue to experience crises in the South China Sea without a practical and uniform operational structure to help guide them.
Fourth, countries should respect the sovereignty of other nations, whether meeting them beyond territorial seas, in the air, or in their respective capitals. This would militate against declaring air-defense identification zones (ADIZs) inter alia without consultation and without recognizing the status of state aircraft. Secretary Kerry emphasized this point on 14 February in Beijing, where he stated that a unilateral, unannounced, and unprocessed declaration of a future ADIZ by China would be a challenge to regional stability.10 China’s earlier declaration of an ADIZ in the East China Sea in November 2013 elicited a strong negative response from the United States, which has uniformly criticized the zone, refused to recognize it, and made clear that its military aircraft will continue to operate and transit the area as normal. In contrast to China’s declaration, South Korea consulted with other nations (including Japan and China) before announcing its expanded ADIZ in the Yellow Sea in December 2013. The United States acknowledged that South Korea adjusted its zone in a manner consistent with international practice and respect for the freedom of overflight and other lawful uses of international air space.
‘Freedom of Navigation and Overflight’
Lastly, from a U.S. strategic perspective, it is vital that freedom of navigation and overflight is not eroded.11 This specifically applies to China’s concerted efforts to allocate a security interest in its EEZ. To avoid any confusion or obfuscation on the issue, the law is clear in UNCLOS—as reflected in customary international law—that the EEZ is a resource-related zone, created to provide a level of sovereign rights over the exploration, use, conservation, and management of natural resources. This vastly expanded grant of rights to coastal states was conditioned on user maritime nations retaining the right to navigate this zone with the same high-seas freedoms enjoyed for centuries before, with no distinction between commercial and military vessels.12 Although user states are required to exercise due regard to the rights of the coastal state, such a state does not enjoy any special security interest by operation of law.
At the conclusion of the Third Law of the Sea Convention, the United States submitted a detailed right of reply that captured the balances associated in the creation of the EEZ between the interest of the coastal state in resources within the zone and the right of all states to exercise freedom of navigation there. Specifically, the U.S. right of reply stressed that
[a]ll states continue to enjoy in the EEZ traditional high seas freedoms of navigation and overflight . . . and other internationally lawful uses of the sea related to those freedoms, which remain qualitatively and quantitatively the same as those freedoms when exercised seaward of the zone. Military operations, exercise and activities have always been regarded as internationally lawful uses of the sea. The right to conduct such activities will continue to be enjoyed by all states in the EEZ.13
Although the United States is not a party to UNCLOS, it considers the navigation and overflight provisions reflective of customary international law. Since 1983, the United States, as a matter of policy (set forth in President Ronald Reagan’s Ocean Policy Statement), has supported all the provisions in UNCLOS except those related to deep-seabed mining. In 1994, after an Implementing Agreement fixed objectionable provisions related to such mining, President Bill Clinton transmitted UNCLOS to the Senate for ratification. The Senate Foreign Relations Committee has twice approved the Convention, in 2004 and 2007, but it has not been considered by the full Senate.
A statement by China’s Ministry of Foreign Affairs spokesman in 2010 after U.S. Navy operations in the Yellow Sea, that “China opposes any party to take any military actions in their EEZ without permission,” is therefore inconsistent with the aforementioned international standard and law.14 It also appears to be a standard that is inconsistent with the recent operation of Chinese naval ships in the EEZ of the United States off both Guam and Hawaii.15
In summary, tensions remain strong over maritime claims, access, and freedom of navigation in the South and East China seas. Given the seemingly unending flash points related to the competing claims, meaningful adherence by states to international law and norms is the best chance of calming the waters of the Western Pacific. This theme has become a clarion call by the United States to all countries in the region and clearly part of the talking points by U.S. leaders when addressing elevated tensions there. Regarding the key principle of maritime access, any attempt to redefine clear legal norms relative to the EEZ or to restrict freedom of navigation and overflight are not helpful, could have severe consequences on commerce and stability and should be firmly resisted by the United States and other responsible states in the region.
1. Robert Beckman, “The South China Sea: The Evolving Dispute Between China and her Maritime Neighbors,” Geomatics World, March–April 2013, 18.
2. See speech manuscript at www.state.gov/secretary/20092013clinton/rm/2010/07/145095.htm.
3. Ibid.
4. See speech manuscript at www.defense.gov/speeches/speech.aspx?speechid=1669.
5. See speech manuscript at www.state.gov/secretary/remarks/2013/12/218835.htm.
6. By a Notification and Statement of Claim dated 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People’s Republic of China pursuant to Annex VII to the Convention. See www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_191_E.pdf
7. Supra, note 6. Secretary of State Kerry reiterated the importance of clarifying maritime claims in his remarks of December 2013.
8. See remarks at http://docs.house.gov/meetings/FA/FA05/20140205/101715/HHRG-113-FA05-Wstate-RusselD-20140205.pdf.
9. Comments in February 2014 at the National Defense College of the Philippines, http://globalnation.inquirer.net/99181/us-admiral-says-chinas-9-dash-line-not-valid.
10. See remarks at www.state.gov/secretary/remarks/2014/02/221658.htm.
11. See National Security Presidential Directive-41 of 21 December 2004, which identifies the security of the maritime domain as a global issue and vital to the interests of the United States, www.fas.org/irp/offdocs/nspd/
spd41.pdf.
12. United Nations Convention on the Law of the Sea art. 58, 10 December 1982, 1833 U.N.T.S. 397. See also Raul (Pete) Pedrozo, Preserving Navigation Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, 9 Chinese J. INT’L L. 9, 12–18 (2010).
13. Official Record of the Third United Nations Conference on the Law of the Sea, vol. 17, 243. Document A/Conf.62/WS/37.
14. http://news.xinhuanet.com/english2010/china/2010-11/26/c_13624036.htm.
15. Kimberly Hsu, China’s Expanding Military Operations in Foreign Exclusive Economic Zones, U.S.-China Economic and Security Review Commission, 19 June 2013, www.uscc.gov/Research/china%E2%80%99s-expanding-military-operations-foreign-exclusive-economic-zones), wherein the author states that in 2012, China’s People’s Liberation Army Navy for the first time conducted maritime intelligence-collection operations in the EEZs of U.S. territory of Guam and Hawaii without providing advance notification.