Journal of Political Risk, Vol. 3, No. 9, September 2015.

Gregory B. Poling
Sumitro Chair for Southeast Asia Studies/Pacific Partners Initiative

Abstract

There has been an explosion of interest in the U.S. policy community regarding the South China Sea disputes, but that interest has too often resulted in oversimplifications and haphazard recommendations regarding how the United States should respond to Chinese activities in disputed waters. Not every action that could be taken should be taken. In order to respond effectively to increasing tensions, U.S. policymakers must clearly identify U.S. long-term strategic goals and gear policy responses toward achieving them. This paper argues that the United States’ top interest in the South China Sea is the preservation of the global maritime commons, and its eventual goal must therefore be to see China clarify its ambiguous “nine-dash line” claim so that the claimants can reach a long-term agreement on managing the disputes that is consistent with international law. Building partner capacity and boosting U.S. presence in order to prevent other claimants from being steamrolled by Chinese bullying before such a resolution can be effected is an important part of that strategy, but it is not the long-term goal. The paper concludes with a number of recommended policy responses the United States should take in order to further its strategic goals.

China’s island building campaign in the Spratly Islands continued unabated through most of 2015, despite strident condemnation from fellow claimants and outside nations. Chinese dredging ships remained hard at work expanding seven features: Cuarteron, Gaven, Hughes, Fiery Cross, Johnson South, Mischief, and Subi reefs. Their work appears to have been completed.^[1] Now China is moving from island building to large-scale construction of military and civilian structures at these artificial land masses. China has presented the region and interested outside parties, including the United States, with a fait accompli.

Given the devastating environmental impacts, worrying effect on regional security environment, and legal violations involved, Washington and its partners are desperate for ways to prevent or deter China from changing further facts on the ground. But that goal alone will not lead to a sound strategy. The situation has changed too drastically for there to be any going back to the precarious balance in place prior to 2009.

That year, states party to the United National Convention on the Law of the Sea (UNCLOS) were required to submit their continental shelf claims, including those to extended shelves up to 350 nautical miles from their shores, to the Commission on the Limits of the Continental Shelf. Exemptions were allowed for states that needed more time due to a lack of technical capacity or outstanding political concerns, including ongoing disputes with other states. Nonetheless, the commission received a flood of submissions in the first half of the year. One of these was a joint submission made by Malaysia and Vietnam, in which they each claimed an extended continental shelf (from Malaysian Borneo and southern Vietnam, respectively) out to the 200 nautical mile exclusive economic zone (EEZ) generated by the adjacent state’s coast. The area of overlap between these two was set aside as an area of joint development.^[2] Vietnam also submitted a second claim to an extended continental shelf from its northeastern coast, encompassing the portion of shelf between the disputed Paracel and Spratly chains.^[3]

The joint Vietnam-Malaysia submission provoked notes verbale in protest from the Philippines^[4] and China, both of whom claimed that it infringed on what could potentially be their own continental shelves. Along with its note, China affixed a map of the nine-dash line—the first time it had officially submitted the line as a depiction of its claim to an international body.^[5] The result was another flurry of notes verbale from the Southeast Asian claimants, including Indonesia, which does not lay claim to any of the features in the South China Sea, objecting to the nine-dash line.^[6]

That moment marked the start of the current round of tensions between the Southeast Asian claimants and China. In 2009 China stepped up its aggressive actions in the South China Sea,^[7] starting a steady rise in the number of violent incidents between Chinese vessels and those of its neighbors to the south as Beijing sought to deter, by force when necessary, the exploitation by Southeast Asian states of natural resources within any part of the nine-dash line. The ASEAN states began to raise the issue more vocally in multilateral forums, including at the 2010 ASEAN Regional Forum in Hanoi when then-Secretary of State Hillary Clinton joined the fray and provoked a strong rebuke from China.^[8] In April 2012 Chinese coast guard vessels effectively seized Scarborough Shoal from the Philippines.^[9] In 2014 Chinese Coast Guard ships blockaded Filipino marines stationed at Second Thomas Shoal,^[10] and the China National Offshore Oil Corporation (CNOOC) provoked a months-long standoff with Vietnamese coast guard and fishing vessels over the deployment of the Haiyang Shiyou 981 drilling rig platform in contested waters.^[11] Meanwhile, Chinese dredgers began work at a number of sites in the Spratlys, expanding existing land features and building new ones that will allow China to project considerably more power in to the southern half of the nine-dash line.

The status quo is now inherently unstable. A new round of escalation is always just over the horizon. One potential cause would be a ruling from the tribunal at the Permanent Court of Arbitration in The Hague, to which Manila brought a case against Beijing’s claims according to the compulsory arbitration procedures permitted by UNCLOS.^[12] It could also be sparked by a violent run-in between the increasing number of Chinese paramilitary forces and Southeast Asian fishermen, as already occurs with disturbing regularity between Chinese vessels and Vietnamese fishermen in the Paracels. The increasingly likely collapse of the rusted-out BRP Sierra Madre, which the Philippine intentionally ran aground on Second Thomas Shoal in 1998, along with the Filipino troops aboard, could provoke a crisis in which both China and the Philippines rush to occupy the feature.^[13] Or, most likely of all, the next round of escalation could come from an incident no one saw coming. Any sound strategy from Washington cannot just revolve around how to prevent further provocations; it must help set the conditions for a sustainable solution to the disputes.

Unfortunately, the heightened attention the South China Sea disputes have received since China’s island-building blitz kicked into high gear in 2014 has proven to be a double-edged sword. On one hand, it seems that the wider policy community in Washington and in other capitals like Canberra and Tokyo have realized the importance of the issue, creating real political will behind the need for concrete responses. Long-term watchers of the South China Sea have been arguing for that kind of attention for years.

But on the other hand, the relatively sudden burst of interest in the disputes has created a false impression in many parts of the policymaking community that the South China Sea is a sudden, acute crisis with only one relevant aspect—its military implications. This is an oversimplification and a false ordering of priorities. The South China Sea is home to a complex web of disputes that are long-standing and likely intractable, which means this flashpoint will be a fixture of the regional landscape for decades to come. The disputes have no simple solutions, and trying to judge the success or failure of U.S. policy, or that of any other player, is not only impossible, but counterproductive. Nonetheless the perceived imminence of the threat represented by China’s activities, particularly its island-building spree, has led to a perception that any actions the United States and its partners in the region might take to confront Beijing’s assertiveness should be taken. What is lacking in too many of these debates is how such actions will further U.S. long-term goals regarding the disputes, or even what those goals are.

Putting Military Implications in Perspective

Certainly China’s island-building has altered the balance of forces in the region, and as its construction of military facilities on these expanded features continues, Beijing’s ability to project power and keep a much larger and more consistent patrol and interdiction capability in and around the Spratlys will likely lead to more run-ins with neighboring states.^[14] There is also a clear intention within the Chinese military to achieve dominance over the U.S. Navy within the so-called “first island chain” and prevent the latter from effectively operating in China’s near seas, including the South China Sea, in the case of a future conflict. The first island chain stretches from Japan’s Okinawa and Ryukyu Islands south through Taiwan, the Philippines, and around the perimeter of the nine-dash line. Establishing dominance over this imaginary line, before eventually preventing the United States from operating effectively within the “” stretching from the Bonin, or Ogasawara, islands to Guam and Indonesia, has been part of Chinese naval strategy since 1982.^[15]

But hyperventilating about the military implications of China’s new artificial islands in any potential U.S.-China conflict is unwarranted. As things stand, these features marginally improve but do not fundamentally alter China’s anti-access/area-denial (A2AD) strategy meant to prevent the United States from operating within its near seas. That strategy relies instead on the country’s vast arsenal of anti-ship ballistic missiles and growing naval, especially submarine, capabilities to raise the potential costs of U.S. naval actions near Chinese shores to unacceptable heights.^[16] The growing presence of Chinese surface ships and, eventually, air coverage provided by carriers, will also play into this strategy. A single (or even two) air strips in the Spratlys and some artillery^[17] on the islands hardly changes that calculus. What China has built are seven facilities that are fundamentally indefensible should a large-scale naval conflict break out. Their primary value is not in helping China to push the United States out of the South China Sea; it is to push the far less capable navies, air forces, and coast guards of Southeast Asian claimants out of the Spratlys.

Admittedly further militarization of the seven artificial islands in the Spratlys could prove problematic. Should China substantially boost fuel storage capacity and other support infrastructure, it could maintain a squadron of advanced fighters on the features that would not only represent problems for Southeast Asian states, but could also contest U.S. air supremacy in the immediate vicinity in the future. More worrying would be the deployment of advanced air defense systems on these land features. Those would present a credible threat to regional air forces and, more importantly, could significantly raise the costs of U.S. operations in the area in wartime. U.S. forces would still be more than capable of removing the threat posed by these installations during a conflict, but doing so would no longer be without risk.

This scenario points to a concern that should receive more attention—the possibility of China and the United States falling into a mini arms build-up in the vicinity of the Spratlys. Should China move to significantly boost its military capabilities in the Spratly Islands to limit the United States’ ability to operate within the South China Sea, for instance with the placement of land-based anti-ship missiles or advanced air defense systems, the United States would likely boost its own ability to counter these threats. This could include upping regional deployments of subs, Aegis destroyers, stealth bombers, and/or F-35 or F-22 fighters, including to the Philippines under the Enhanced Defense Cooperation Agreement (EDCA). In the end, China’s facilities in the Spratlys would still be indefensible and would not fundamentally affect the success or failure of Beijing’s A2AD strategy.

The military implications of China’s island-building should be of concern to the United States, but they should not be the primary concern in the South China Sea. The U.S. military should pay attention to preparing for a future conflict, but that preparation cannot be an end in itself. Far better would be to avoid conflict altogether, assuming that can be accomplished without throwing Southeast Asian claimants and the international legal order overboard. Similarly, bolstering the U.S. presence in the South China Sea and strengthening the United States’ capacity to respond to crises and support regional partners is certainly a priority. So is strengthening regional states’ capacity to stand up to Chinese coercion and contest Beijing’s claims. But these are short-term goals, intended to prevent China from steamrolling Southeast Asian states and bullying them into ceding the South China Sea before a more equitable, long-term solution can be effected.

What should such a solution look like? To determine that, it is necessary to recognize what the United States’ most vital long-term interests are in the South China Sea, and what a minimally acceptable solution would be for all claimants.

Long-term Interest: Preserving the Global Maritime Commons

China’s nine-dash line claim over most of the waters in the South China Sea is a threat to much more than just neighboring states’ access to their own waters and resources. It is a threat to the global maritime commons and to the great project of the post-World War II international community: a system of laws, norms, and institutions intended to move nation-states beyond the might-makes-right order of centuries past. That is a project in which all states, the United States included, have a vital interest. And its preservation should be the top long-term goal of U.S. policymakers with regard to the South China Sea.

When discussing the disputes in the South China Sea, the first objection that must usually be overcome is the simple, so what? Why should the United States concern itself with a bunch of rocks, reefs, and sandbars across the Pacific? What possible stake does Washington have in the at times mind-numbing overlap of EEZs and continental shelf claims? On one level, the fact is that the United States does not and should not care about these aspects of the disputes. There is no vital U.S. national interest at play in whether China or Malaysia has sovereignty over Swallow Reef, or how much of its continental shelf Vietnam can exploit. This is why the U.S. government has since at least 1995 consistently maintained that it takes no position regarding the sovereignty disputes in the South China Sea.^[18]

But the United States has never claimed to be completely “neutral.” Washington does not particularly care who ends up with which features or maritime entitlements, but it definitely does care how those resolutions are reached. That is a point often, and perhaps intentionally, misrepresented by Chinese officials and commentators who decry U.S. hypocrisy or inconsistency for not sticking to an imaginary pledge of neutrality.^[19] U.S. officials have consistently held that the United States has a vital interest in seeing the South China Sea disputes resolved peacefully and according to international law. As U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated during a July 2015 keynote speech at the Center for Strategic and International Studies,

For us, it’s not about the rocks and shoals in the South China Sea or the resources in and under it, it’s about rules and it’s about the kind of neighborhood we all want to live in. So we will continue to defend the rules, and encourage others to do so as well.^[20]

And later, during the question and answer session: “We are not neutral when it comes to adhering to international law. We will come down forcefully when it comes to following the rules.”^[21] This is principle of U.S. policy that extends well beyond the South China Sea, as evidenced by the U.S. State Department’s long-running Limits in the Seas series analyzing and critiquing maritime claims around the world, and the dozens of freedom of navigation (FON) operations the U.S. navy and other branches undertake each year to challenge states’ excessive claims or unlawful restrictions on navigation.

That a peaceful resolution to the South China Sea disputes is in the United States’ interests is largely self-evident; given its status as a resident power in the Pacific, the United States wants to see the region avoid open conflict. The United States does not want to be drawn into an avoidable military confrontation with a rising China. The South China Sea disputes are particularly alarming on this front because one of the prime disputants is the Philippines, an ally that would likely expect U.S. assistance under the terms of the two nations’ mutual defense treaty in the event of open hostilities with China.^[22]

At least as important, if less immediately evident, is the U.S. stake in seeing the disputes resolved in accordance with international law, meaning UNCLOS. The convention was the result of decades of difficult negotiations. It is now the foundational document underwriting countries’ rights and responsibilities in the maritime domain. Chinese negotiators were at the table when the difficult concessions regarding coastal states’ maritime entitlements—to territorial seas, EEZs, and continental shelves—were made and signed in 1982. They were also present during the process of renegotiation that eventually led to the treaty’s taking effect in 1994. When China acceded to UNCLOS in 1996, it did so with open eyes, fully understanding its rights and responsibilities under the convention.^[23]

Upon ratification, China made four declarations or reservations, none of which mentioned the nine-dash line, historic waters or rights, or any of the other language Beijing has since trotted out in defense of its excessive claims. It did note, “The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.”^[24] So upon ratifying UNCLOS, China both restated its claim to the land features of the South China Sea and committed to restrict its maritime claims only to the territorial seas, EEZs, and continental shelves generated by land features. Interestingly, it also agreed to “effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.”^[25] Beijing’s dogged commitment to the nine-dash line, which encompasses nearly the entire South China Sea and comes within a metaphorical stone’s throw of the coasts of Palawan and Borneo, has clearly abandoned this principle of equitability.

What has changed since that time, leading Beijing to press claims that the international community at large sees as contrary to the letter and spirit of UNCLOS, is not the interpretation of the treaty, or the definition of historic waters and rights. China’s current flouting of UNCLOS is due to its changing interests.^[26] An emerging China, freshly reengaging with the global community and seeking to turn around a moribund economy, had everything to gain from the entitlements guaranteed to it under UNCLOS, and the restrictions placed on stronger nations’ activities under the treaty. Now that China perceives itself as a rising great power, Beijing has decided that it needs neither the protections nor the restrictions of UNCLOS, at least not in its near seas where it can increasingly pursue its interests with naval force and other forms of coercion.

At its core, the Law of the Sea convention represents a grand bargain between two sides that had been arguing for centuries over rights and restrictions in the oceans. On one side were the maritime powers, those like the United Kingdom and the United States, who had true blue-water navies and robust merchant fleets capable of operating around the globe. These states had an interest in seeing as much of the ocean as possible declared international waters, open to any and all.^[27] For them, the pre-UNCLOS standard of a three nautical mile territorial sea was more than enough for littoral states, and exclusive rights for coastal states or restrictions on the freedom of navigation beyond that zone was anathema.

On the other side were coastal nations that, like China, had weak or non-existent navies and little commercial interests at sea beyond traditional fishing. For these countries, the history of recent centuries was one of maritime powers—including the Dutch, then the British, and now the Americans—unfairly exploiting the seas at the expense of weaker littoral states. They wanted to see far more of the resources of the waters and seabed off their shores protected from foreign exploitation. They also sought to regulate and restrict traffic within these waters just as they would within their land border—in other words, they wanted the territorial sea vastly extended. Eventually a grand compromise was reached—the territorial sea was extended four-fold, but remained modest at 12 nautical miles, while the novel concepts of the EEZ and continental shelf entered into force. These were zones within which the coastal state would have control over resources, but through which naval and civilian traffic would remain unimpeded.^[28]

The China of 1982, and even of 1994, was content with this bargain. It had not been a maritime power in six centuries, but it had laid plans to change that in the near future. Beijing wanted the resource protections afforded by the regime of EEZs and continental shelves, along with the freedom of navigation through most of the globe’s waters on which its merchant fleet and burgeoning navy would rely. It continued to pay lip service to the nine-dash line in domestic legislation and occasional diplomatic statements, but made no move to clarify it and certainly did not attempt to enforce an exclusive claim to all the waters and seabed within it, which at the time would have seemed patently ridiculous.

Now Beijing’s calculus has changed. China no longer needs the umbrella of international law to protect its rights in its near seas—it has a large and still growing navy, coast guard, and maritime militias to see to that. So why not throw its weight around? The result has been steady encroachments on the rights of neighboring states and the expansion of those that China claims as its own, even while China’s commercial interests—shipping, oil and gas, telecommunications, etc.—continue to rely upon other states around the world observing the strictures of UNCLOS.

The simple truth is that UNCLOS in its current form—a robust, nearly universally respected regime governing rights and restrictions in the oceans—would not survive the acceptance of the nine-dash line as legitimate. Were China granted the excessive claims it has made to all resources within the nine-dash line, why would any rational state continue to restrict itself to the regime of EEZs and continental shelves UNCLOS established? If EEZs and continental shelves do not apply to China, why should they apply to any other nation with the will and capacity to stake more expansive claims? From the Arctic to the Persian Gulf, countries would scramble to extend their claims over disputed waters and seabeds, or to entitlements far beyond the 200 nautical miles (or up to 350 nautical miles in the case of the continental shelf) to which they have so far been restricted. To do otherwise would be to willingly act against one’s own national interests.

Admittedly, there is truth to arguments that the post-war order must adapt in recognition of the emergence of non-Western powers like China and India as major players on the global stage. Great powers always seek to bend the rules of the international system. The United States is certainly no stranger to such entitlements. But there is a difference between bending the rules and breaking the entire system.

For instance, the United States famously refused to abide by a 1986 International Court of Justice (ICJ) ruling ordering Washington to end support for contra rebels in Nicaragua, halt the mining of Nicaraguan waters, lift an embargo on trade with the country, and pay reparations.^[29] In an uncomfortable echo of China’s position toward the case brought by the Philippines before the Permanent Court of Arbitration, the United States refused to recognize the ICJ’s jurisdiction and then blocked efforts by the UN Security Council to force compliance with the ruling.

The issue was resolved when Violeta Chamorro was elected president in the 1990 Nicaraguan election, unseating the Sandinista government of Daniel Ortego that Washington had so vigorously opposed. Relations warmed, the United States lifted the embargo, ended its meddling in the internal affairs of Nicaragua, and offered aid, so Nicaragua dropped the case.^[30] In essence, the U.S. government complied with all the court’s demands except paying compensation, which would have amounted to an admission of guilt, and the case went away. The episode is certainly not one of which the United States should be proud, and future administrations should never repeat, but the political accommodation reached with Nicaragua hints at the kind of compromises that could be made in the South China Sea, particularly with regard to the Philippines’ case. The end result was that the ICJ survived as a viable and generally effective institution, the United States saved face, and Nicaragua was at least in part vindicated.

The preservation of the core of UNCLOS—the rights and responsibilities of states regarding territorial seas, EEZs, and continental shelves, and the definition of rocks and islands and their respective entitlements—is as important to the United States as to anyone else^[32] More importantly, international courts, including the International Court of Justice in 2012, have ruled that the rights to maritime entitlements and the regime of islands within UNCLOS are matters of customary international law.^[33] They are therefore legally binding for all nations, regardless of whether they are parties to UNCLOS.

The Outlines of a Long-Term Solution

Outside parties do not, and should not, take a position regarding the territorial disputes, meaning the claims to land features within the South China Sea. But they have a vital stake in seeing that the overlapping maritime claims are put forth and managed according to UNCLOS. Putting aside the territorial disagreements and focusing instead on establishing an agreed-upon area of legal dispute, in which legally defensible claims to territorial seas, EEZs, and continental shelves overlap and in which claimants could focus on joint activities, is the only viable long-term solution that would preserve the integrity of UNCLOS. This is due to the complexity of overlapping claims, which makes delimitation via negotiations all but impossible in the medium-term, and the reticence of Beijing in particular to recognize arbitration as a viable means to settle the disputes.

To date, the Philippines has made the strongest commitment to establish its maritime claims in line with UNCLOS. Through domestic legislation in 2009, Manila established its archipelagic baselines according to the convention and, just as importantly, specified that its claims to the Spratlys would be made in line with the UNCLOS regime of islands, though it has not to date said whether it considers any of those features to be islands and not just rocks.^[34] For its part, Vietnam’s 2012 Law of the Sea stated that Hanoi’s claims are only to EEZs and continental shelves in line with UNCLOS.^[35] And its 2009 submissions to the Commission on the Limits of the Continental Shelf of two extended continental shelf claims negated older, more extensive claims it made in the 1970s.^[36] Those submissions also suggest that Vietnam does not plan to claim EEZs or continental shelves from the Paracel or Spratly Islands. One of those submissions was made jointly with Malaysia, and therefore also implied that Malaysia does not view any of the Spratlys as its legal islands.

All of that legal activity indicates that, given a concerted effort, the Southeast Asian claimants could come to an agreement regarding an area of legal dispute around the Spratlys. In fact, the Southeast Asian states should prove especially open to such an arrangement, as it would establish the waters and seabeds that are definitely not in dispute, allowing these countries to access the resources that lie within the nine-dash line but clearly beyond the maximum possible area legally in dispute.^[37]

The primary hurdle to such an agreement is China’s refusal to clarify the nine-dash line. Since 2012 the Ministry of Foreign Affairs in Beijing has consistently maintained that the claim is only to the islands and “adjacent waters” within the nine-dash line.^[38] Were that true, then the claimants would be in a position to begin negotiating over an area of legal dispute based upon admittedly excessive but still technically legal claims to EEZs and continental shelves from the land features. But China’s actions, including those of the ministry itself, belie this claim and make it clear that the government is pursuing an ambiguous but more maximalist interpretation of the nine-dash line. Beijing continues to object to other claimants’ activities, such as the Philippines’ and Vietnam’s declaration of oil and gas concession blocks, in areas that clearly do not fall within any possible entitlement from disputed features.^[39] China has also laid claim to resources well beyond those waters, as it did with CNOOC’s 2012 announcement of new oil and gas blocks off the Vietnamese coast.^[40] And it continues to extend claims of sovereignty to entirely submerged features such as Macclesfield Bank and, most absurdly, James Shoal off the coast of Borneo.^[41]

The most important long-term goal for the United States, Southeast Asian states, and other interested parties must therefore be to convince China to clarify the nine-dash line in accordance with UNCLOS. No one can force China’s leaders to make such a clarification. Policymakers in Beijing will have to come to their own conclusion that the costs of being perceived as an outlier in the global system and an irresponsible, if not outright aggressive, rising power outweigh the benefits of maintaining an extralegal claim to the nine-dash line. Washington’s overriding priorities must be to bolster Southeast Asian claimants’ ability to contest China’s excessive claims, bring their own claims into conformity with UNCLOS, rally an international consensus against the nine-dash line, and add pressure on Beijing to shift its cost-benefit analysis towards clarifying its claims.

U.S. Policy Options^[42]

Much of current U.S. strategy is already geared toward the immediate policy challenges in the South China Sea. The United States is engaged in substantial efforts to bolster Southeast Asian states’ maritime domain awareness and patrol and deterrence capabilities, all to prevent more blatant Chinese aggression. These efforts must be enhanced, particularly through greater cooperation with the Philippines, once the EDCA signed in early 2014 is enacted, and through expansion of joint activities with Vietnam. Washington must also cajole others to support its efforts. Meanwhile the U.S. government is putting considerable diplomatic exertion into the long game: pushing all parties, not just China, to bring their claims into accordance with international law.

While existing efforts continue, there remains more that U.S. policymakers can do to prevent the use of coercion to resolve disputes, pressure all parties to clarify their claims, and help develop an environment for an eventual resolution of the disputes. The following is far from an exhaustive list of the United States’ possible responses, but it demonstrates how policy options should be considered with an eye to both short-term and long-term U.S. interests in the South China Sea.

• The White House should give renewed thought to clarifying the scope of its commitment to defend Philippine troops in areas of dispute. The United States has for years offered an explicit guarantee of protection to Japanese forces on the Senkaku Islands, arguing that it remains neutral on the dispute but sees the features as being under effective Japanese administration. Meanwhile, senior officials including President Barack Obama have told the Philippines that the U.S. commitment to it is “ironclad” without offering specifics.^[43] Washington need not extend quite the same guarantee to Manila that it has to Tokyo. It is not necessary that the United States say that it would consider Philippine-controlled Spratlys to fall within the scope of the 1951 U.S.-Philippines Mutual Defense Treaty because they are under effective Philippine jurisdiction. Indeed, a legal case can be made that they do not fall within the treaty’s scope, because the Philippines did not extend its claim to the islands until after the signing of the treaty. Instead, the United States should offer an explicit guarantee that any Philippine forces, ships, or planes that come under unprovoked aggression in disputed waters of the South China Sea would trigger a U.S. response, as specified by the treaty regarding an attack on the Philippines’ “armed forces, public vessels or aircraft in the Pacific.”^[44] Such clarity comes with its own risks, but the costs of continued ambiguity have become too high.

Washington’s current strategy trusts that both Beijing and Manila understand where the trigger for U.S. intervention lies—a point not entirely clear even to U.S. policymakers. This is a dangerous assumption, given the increasingly frequent interactions between Chinese and Philippine forces in and around the Spratlys. A clarification of U.S. commitments not only would deter China from accidentally overstepping a red line it did not know existed; it would also restrain the Philippines from adventurism that it might falsely believe the United States would support.

It would also go a long way toward countering voices in the Philippines, particularly on the political left, who argue that the U.S. commitment cannot be trusted. The differences in phrasing between the security guarantees in the U.S.-Japanese and in the U.S.-Philippine defense treaties are negligible. This raises concerns in Manila that the United States has refused to offer it assurances not because of legal technicalities, but because when push comes to shove, Washington might not be prepared to back up Philippine forces.

Putting those arguments to bed would also help depoliticize the EDCA that was signed by the United States and the Philippines in 2014 but is mired in the Philippine Supreme Court amid both legal and political concerns. The agreement would allow U.S. equipment to be prepositioned in the Philippines and greater numbers of U.S. troops to rotate through Philippine bases. Most importantly, it would allow the United States to substantially upgrade military infrastructure in the Philippines for joint use. The agreement is critical to bolstering Philippine capacity to withstand Chinese bullying and develop what Philippine Secretary of Foreign Affairs Albert del Rosario has termed a “minimum credible defense posture.”^[45]

• In light of China’s reclamation work, the Department of Defense should conduct a freedom of navigation operation to assert that the new features built on low-tide elevations are legally artificial islands entitled under international law to no more than a 500-meter safety zone. Reports leaked in May 2015 that the Pentagon was considering performing FON operations within 12 nautical miles of certain features on which China has performed reclamation or island building in the Spratlys.^[46] U.S. officials have refused to confirm whether a decision on such operations has been reached. But Secretary of Defense Ashton Carter made clear several times during his trip to the region for the Shangri-La Dialogue in May that the Pentagon considered such operations to be well within the United States’ rights.^[47] Unfortunately, the rationale behind the operations has not been made clear, allowing significant misinformation to spread through the press and analytical communities.

Each year the U.S. military performs FON operations and other activities to challenge excessive maritime claims around the globe. In fiscal year 2014, the U.S. Navy performed such operations to challenge the claims of 19 nations, including China, Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam.^[48] In light of China’s reclamation work, the Department of Defense has every reason to add a FON operation to the 2015 or 2016 calendars to assert that those new features built on low-tide elevations are legally artificial islands entitled under international law to no more than a 500-meter, or 1,640-foot, safety zone. A U.S. Navy ship should transit within 12 nautical miles of Mischief Reef and Subi Reef (but only those two), as they were both low-tide elevations prior to China’s work and they lie beyond the 12-nautical-mile territorial sea of any nearby rocks.

Legally China could challenge such passage only by claiming a low-tide elevation as a rock or island entitled to a territorial sea. That would place Beijing in an absurd legal position. It is equally likely that Beijing would recognize this absurdity and not publicly object to such a FON operation. In either case, the operation would offer clarity on what China considers these reclaimed features to be. More importantly, it would place more pressure on China to clarify its claims and thereby shrink the size of the area in dispute to a more manageable space.

• Regarding FON operations and other activities to contest excessive Chinese claims, it is imperative that the United States urge claimant states and other interested parties such as Australia and Japan to take part independently and jointly. It is also important that Washington try to convince partner nations to undertake joint activities to contest claims and bolster other claimants’ capacity without the United States. A key component of China’s strategy to deflect criticism over the South China Sea has been the peddling of a narrative that recent escalations are really about U.S. efforts to contain China. But the stakes in the South China Sea are high for all countries interested in the preservation of international law and the maritime commons. Allowing Beijing to sell a narrative that the disputes are a bilateral U.S.-China issue is counterproductive. That position would be much harder to maintain in the face of joint Australia-Philippines capacity building efforts, for example, or Japan-Vietnam joint patrols.

• The State Department, through its Limits in the Seas series, should provide legal analyses of the claims of Malaysia as it has already done for those of China, Indonesia, the Philippines, and Vietnam.^[49] Kuala Lumpur has failed to give an accounting of its territorial baselines, and its claim is often still depicted based on a map of its continental shelf issued in 1979, which predated and is not compliant with UNCLOS.^[50] Its 2009 submission to the Commission on the Limits of the Continental Shelf invalidated that map, but only presented an incomplete picture of its current claims.^[51] As a matter of fairness, and as a relatively easy step, the State Department should issue a position paper on Malaysia’s maritime claims and strongly urge Kuala Lumpur to clarify them in accordance with international law. The State Department should also release a paper on the claims of Brunei, which, while apparently not excessive, have not been publicly declared, as UNCLOS requires.

• The United States should offer technical, legal, and diplomatic support for an effort by Southeast Asian claimants to reach an agreement on what is and is not disputed in the South China Sea. Given the refusal of China to clarify the scope of the nine-dash line in order to shrink the size of the disputed area in the South China Sea to something more manageable, Southeast Asian claimants should begin the process themselves to place pressure on China, seize the legal and moral high ground, and present a united front. Brunei, Malaysia, the Philippines, and Vietnam, and perhaps Indonesia should agree to perform their own survey of disputed features; agree on which, if any, are legally islands; and then issue an agreed-upon area of overlapping maritime entitlements from those zones. U.S. diplomatic support would be valuable in helping the claimants reach a consensus on such an effort, and U.S. legal and technical capabilities, as evidenced by the work of the State Department’s Limits in the Seas series, could be immensely helpful. The overarching purpose of this exercise would be to recognize that the disputes over land features in the South China Sea are irreconcilable in the medium term, but that a system of resource sharing and joint activities in disputed waters could provide a long-term means of managing the maritime disputes.

The U.S. government needs to build as much backing as possible among both regional and outside nations in support of any future ruling from the arbitration tribunal hearing the Philippines’ case against China. Authorities in Beijing are almost certain to ignore a ruling from the tribunal at the Permanent Court of Arbitration at The Hague, but it is possible that China could choose to clarify the nine-dash line in the future, in line with a limited ruling, in order to avoid international opprobrium and being seen as an irresponsible member of the global community. Beijing will not admit that it is clarifying its claim because a court ordered it to do so, but the effect would be the same. This will require that any ruling from the court be narrow enough to allow China to clarify the nine-dash line while still maintaining much or most of its claim to maritime space in the South China Sea. But it will also rely on China’s leaders feeling pressure from a wide array of international players, not only in Asia and the United States but also in Europe and elsewhere.

Gregory Poling is a fellow with the Sumitro Chair for Southeast Asia Studies and the Pacific Partners Initiative at CSIS. He manages research projects that focus on U.S. foreign policy in the Asia Pacific, with a special concentration on the member countries of the Association of Southeast Asian Nations. His research interests include disputes in the South China Sea, democratization in Southeast Asia, and Asian multilateralism. Mr. Poling’s publications include A New Era in U.S.-Vietnam Relations: Deepening Ties Two Decades after Normalization (Rowman & Littlefield/CSIS, June 2014), A U.S.-Indonesia Partnership for 2020: Recommendations for Forging a 21st Century Relationship (CSIS, September 2013), The South China Sea in Focus: Clarifying the Limits of Maritime Dispute (CSIS, July 2013), and Sustainable Energy Futures in Southeast Asia (CSIS, December 2012). Mr. Poling received an MA in international affairs from American University and a BA in history and philosophy from Saint Mary’s College of Maryland, and studied at Fudan University. 

JPR Status: Peer Reviewed Article (3/3)

Footnotes:

^[1] Asia Maritime Transparency Initiative (AMTI), “Island Tracker,” accessed 7/4/2015, http://amti.csis.org/island-tracker/.

^[2] Malaysia and the Socialist Republic of Vietnam, Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of the Southern Part of the South China Sea (May 2009), http://www.un.org/Depts/los/clcs_new/submissions_files/submissoin_mysvnm_33_2009.htm.

^[3] Socialist Republic of Vietnam, Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of Vietnam’s Extended Continental Shelf: North Area (VNM-N)(April 2009), http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm2009n_executivesummary.pdf.

^[4] Permanent Mission of the Republic of the Philippines to the United Nations, Note Verbale 0008919, August 4, 2009, http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/clcs_33_2009_los_phl.pdf.

^[5] Permanent Mission of the People’s Republic of China to the United Nations, Note Verbale CML/17/2009, May 7, 2009, http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf.

^[6] Permanent Mission of the Republic of Indonesia to the United Nations, Note Verbale No. 480/POL-703/VII/10, July 8, 2010, http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf.

^[7] Christopher Yung and Patrick McNulty, “Claimant Tactics in the South China Sea: By the Numbers,” East-West Center Asia Pacific Bulletin 314, June 16, 2015, http://www.eastwestcenter.org/system/tdf/private/apb314.pdf?file=1&type=node&id=35190.

^[8] “U.S. Signals to China It Won’t Keep Out of South China Sea,” Bloomberg, July 23, 2010, http://www.bloomberg.com/news/articles/2010-07-23/u-s-says-settling-south-china-sea-disputes-leading-diplomatic-priority-.

^[9] Carlyle A. Thayer, “Standoff in the South China Sea,” YaleGlobal, June 12, 2012, http://yaleglobal.yale.edu/content/standoff-south-china-sea.

^[10] “Philippines Lodges Protest over China Ship Blockade,” BBC, March 11, 2014, http://www.bbc.com/news/world-asia-26524388.

^[11] Ernest Z. Bower and Gregory B. Poling, “China-Vietnam Tensions High over Drilling Rig in Disputed Waters,” CSIS Critical Questions, May 7, 2014, http://csis.org/publication/critical-questions-china-vietnam-tensions-high-over-drilling-rig-disputed-waters.

^[12] UNCLOS, December 10, 1982, Part XV and Annex VII, http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm.

^[13] See Jeff Himmelman, “A Game of Shark and Minnow,” New York Times, October 27, 2013, http://www.nytimes.com/newsgraphics/2013/10/27/south-china-sea/.

^[14] Andrew S. Erickson, “Runway to the Danger Zone? Lengthening Chinese Airstrips May Pave Way for South China Sea ADIZ,” China Analysis from Original Sources, April 24, 2015, http://www.andrewerickson.com/2015/04/runway-to-the-danger-zone-lengthening-chinese-airstrips-may-pave-way-for-south-china-sea-adiz-2/.

^[15] Stacy A. Pedrozo, “China’s Active Defense Strategy and Its Regional Impact” [Testimony before the U.S.-China Economic and Security Review Commission, Washington, DC, January 27, 2011], http://www.uscc.gov/sites/default/files/1.27.11Pedrozo.pdf.

^[16] Wendell Minnick, “China Pursues Systems to Keep US Forces at Bay,” Agence France-Presse, September 17, 2013, http://www.defensenews.com/article/20130917/DEFREG03/309160021/China-Pursues-Systems-Keep-US-Forces-Bay.

^[17] Travis J. Tritten, “Pentagon Confirms China Put Weapons on Artificial Island,” May 29, 2015, http://www.stripes.com/news/pacific/pentagon-confirms-china-put-weapons-on-artificial-island-1.349267.

^[18] U.S. Department of State, “China: Maritime Claims in the South China Sea,” Limits in the Sea 143, December 5, 2014, footnote 25, http://www.state.gov/documents/organization/234936.pdf.

^[19] See Ares P. Gutierrez, “China Media Hits Washington for Reneging on ‘Neutrality’ Pledge,” Manila Times, April 11, 2015, http://www.manilatimes.net/china-media-hits-washington-for-reneging-on-neutrality-pledge/175026/; “US Admits to Only Paying Lip Service to Neutrality in South China Sea Issues,” China Daily, July 24, 2015, http://www.chinadaily.com.cn/opinion/2015-07/24/content_21392640.htm.

^[20] Daniel Russel, Remarks at the Fifth Annual South China Sea Conference, Center for Strategic and International Studies, Washington, DC, July 21, 2015, http://www.state.gov/p/eap/rls/rm/2015/07/245142.htm.

^[21] Prashanth Parameswaran, “US Not ‘Neutral’ in South China Sea Disputes: To US Diplomat,” Diplomat, July 22, 2015, http://thediplomat.com/2015/07/us-not-neutral-in-south-china-sea-disputes-top-us-diplomat/.

^[22] Mutual Defense Treaty Between the United States and the Republic of the Philippines, August 30, 1951, Articles IV-V, http://avalon.law.yale.edu/20th_century/phil001.asp.

^[23] See Peter Dutton, “China’s Claims are Unambiguously Ambiguous,” AMTI, June 16, 2015, http://amti.csis.org/chinas-claims-are-unambiguously-ambiguous/.

^[24] China, Declaration Made upon Ratification of the United Nations Convention on the Law of the Sea, June 7, 1996, http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China Upon ratification.

^[25] Ibid.

^[26] Dutton, “China’s Claims are Unambiguously Ambiguous.”

^[27] Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven: Yale University Press, 2014), 112-113.

^[28] Ibid; The right of unimpeded naval access to the EEZ has been accepted by the vast majority of UNCLOS signatories, but some states, primarily in Asia and including China, continue to insist on the right to restrict foreign military activities beyond the territorial sea.

^[29] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement, June 27, 1986, http://www.icj-cij.org/docket/?sum=367&p1=3&p2=3&case=70&p3=5.

^[30] Mariano Castillo, “Nicaragua May Revive $17 Billion Claim against U.S.,” CNN, July 22, 2011, http://www.cnn.com/2011/WORLD/americas/07/21/nicaragua.us.claim/.

^[31] See UN Convention on the Law of the Sea (UNCLOS), December 10, 1982, Articles 3-16, 55-85, and 121, https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm.

^[32] Thad W. Allen, Richard L. Armitage, and John J. Hamre, “Odd Man Out at Sea,” New York Times (Op-Ed), April 24, 2011, http://www.nytimes.com/2011/04/25/opinion/25allen.html; John B. Bellinger III, “Should the United States Ratify the UN Law of the Sea?” Council on Foreign Relations, November 11, 2014, http://www.cfr.org/treaties-and-agreements/should-united-states-ratify-un-law-sea/p31828.

^[33] Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 627, 666, 673-4, http://www.icj-cij.org/docket/files/124/17164.pdf.

^[34] Republic of the Philippines, Republic Act. No. 9522 (March 10, 2009), http://www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html.

^[35] Vietnam, The Law of the Sea of Viet Nam (June 21, 2012), trans. BienDongnet, http://biendong.net/en/documents/law/309-the-law-of-the-sea-of-viet-nam.html.

^[36] Malaysia and Vietnam, Joint Submission to the Commission on the Limits of the Continental; Vietnam, Submission to the Commission on the Limits of the Continental Shelf; for claims from the 1970s, see Mark J. Valencia, John M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea (Honolulu: University of Hawaii Press, 1999), 11-12.

^[37] For one interpretation of the area legally in dispute, see Gregory B. Poling, The South China Sea in Focus: Clarifying the Limits of Maritime Dispute (Washington, DC: CSIS/Rowman & Littlefield, 2013), http://csis.org/files/publication/130717_Poling_SouthChinaSea_Web.pdf.

^[38] Ministry of Foreign Affairs of the People’s Republic of China, “Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on February 29, 2012,” March 1, 2012, http://www.fmprc.gov.cn/eng/xwfw/s2510/t910855.htm.

^[39] Poling, South China Sea in Focus, 24-25.

^[40] Ibid, 23-24.

^[41] Bill Hayton, “How a Non-Existent Island Became China’s Southernmost Territory,” South China Morning Post, February 9, 2013, http://www.scmp.com/comment/insight-opinion/article/1146151/how-non-existent-island-became-chinas-southernmost-territory.

^[42] The following is taken from Gregory Poling, “Grappling with the South China Sea Policy Challenge,” Center for Strategic and International Studies, August 2015, 2-7, http://csis.org/files/publication/150813_Poling_GrapplingSouthChinaSea_WEB.pdf.

^[43] Mark Felsenthal and Matt Spetalnick, “Obama Says U.S. Commitment to Defend Philippines ‘Ironclad,’” Reuters, April 29, 2014, http://www.reuters.com/article/2014/04/29/us-philippines-usa-obama-idUSBREA3S02T20140429.

^[44] Mutual Defense Treaty Between the United States and the Republic of the Philippines, Article V.

^[45] Jerry Esplanada, “Japan, SoKor, Australia to Help PH Improve Defense Capability—DFA,” Philippine Daily Inquirer, May 20, 2012, http://globalnation.inquirer.net/37441/japan-sokor-australia-to-help-ph-improve-defense-capability-%E2%80%93-dfa.

^[46] Adam Entous, Gordon Lubold, and Julian E. Barnes, “U.S. Military Proposes Challenge to China Sea Claims,” Wall Street Journal, May 12, 2015, http://www.wsj.com/articles/u-s-military-proposes-challenge-to-china-sea-claims-1431463920.

^[47] Gregory Poling, “Carter on the South China Sea: Committed & (Mostly) Clear,” CogitAsia, June 4, 2015, http://cogitasia.com/carter-on-the-south-china-sea-committed-mostly-clear/.

^[48] U.S. Department of Defense, “Freedom of Navigation Report for Fiscal Year 2014,” March 23, 2015, http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/20150323%202015%20DoD%20Annual%20FON%20Report.pdf.

^[49] U.S. Department of State, “Limits in the Seas,” accessed July 4, 2015, http://www.state.gov/e/oes/ocns/opa/c16065.htm.

^[50] Peta menunjukkan sempadan perairan dan pelantar benua Malaysia [Map showing the territorial waters and continental shelf of Malaysia] (Kuala Lumpur: Directorate of National Mapping Malaysia, 1979).

^[51] Malaysia and Vietnam, Joint Submission to the Commission on the Limits of the Continental Shelf.