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Backgrounder #2908 on Asia and the Pacific

April 24, 2014

A National Strategy for the South China Sea

By and

Abstract

The United States should develop and promulgate a National Strategy for the South China Sea (NSSCS) as part of its ongoing efforts to counter Chinese aggression in the region and to resolve the disputes there in a peaceful manner. It behooves the United States to shift its current posture in the South China Sea from one of vigilant maintenance of the status quo to a position that will foster the peaceful management and ultimately permanent resolution of issues affecting U.S. navigational rights and interests in the region. An NSSCS is one effective means of producing the necessary shift.

On December 5, a Chinese warship nearly collided with the USS Cowpens, a guided-missile cruiser operating lawfully in the South China Sea (SCS). This was only the most recent incident highlighting the unsustainable situation in the SCS.

In a throwback to the time of John Selden’s Mare Clausum,[1] China has claimed sovereign rights to the entirety of the SCS within a “nine-dash line” that encloses the sea, encroaching on China’s neighbors. Over the past several years, China has vigorously pursued its claim, regularly harassing the fishing boats and oil exploration vessels of other nations that border the SCS. Most alarmingly, China has endangered U.S. Navy vessels engaged in lawful military activities in the SCS. In addition, in what may be a prelude to its future plans for the SCS, China recently declared an “air defense identification zone” in the East China Sea, which includes the airspace over a disputed group of islands.

To make its intentions entirely clear to China and U.S. allies in the region, the United States should develop and promulgate a policy document—a National Strategy for the South China Sea (NSSCS)—that contains:

  1. An official position regarding the nature of the disputed land features in the SCS;
  2. A legal memorandum concerning U.S. military activities in the SCS, including military surveys;
  3. An opinion on the legality of China’s “nine-dash line” claim;
  4. An affirmation of U.S. “freedom of navigation” operations in the SCS; and
  5. A statement of support for the Philippines in its arbitration case against China.

It behooves the United States to shift its current posture in the SCS from one of vigilant maintenance of the status quo to a position that will foster the peaceful management and ultimately permanent resolution of issues affecting U.S. navigational rights and interests in the region. An NSSCS is an effective means of producing the necessary shift.

China’s Mare Clausum

China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.

—Letter to U.N. Secretary-General Ban Ki-moon from Chinese Mission to the United Nations, May 2009[2]

More than 800 years ago Pope Alexander III granted sovereignty over the entire Adriatic Sea to the city-state of Venice. In a ceremony that began in 1176 and was repeated annually, the Pope presented the Doge of Venice with a golden ring, which he would cast into the Adriatic, symbolically marrying Venice to the sea. Venice did not possess both shores of the Adriatic, but that did not stop it from invoking its “marriage rights” and prosecuting them through force.[3]

Three hundred years later, papal sanction was again sought regarding sovereignty over the Atlantic Ocean. To resolve disputes and avoid conflict between maritime powers Spain and Portugal, in 1493, Pope Alexander VI issued a bull dividing the Atlantic Ocean from pole to pole, granting Spain sovereignty over all lands to the west of the line and Portugal all lands to the east. The papal grant included a monopoly over all commerce within the divided areas “so that other nations could not trade without license from the Spanish or Portuguese sovereign.” Navigation and trade within the Atlantic without a royal license was punishable by death.[4]

A century later, in 1609, the debate over whether maritime states could exercise sovereign rights over such vast bodies of water came to a head with the publication of Hugo Grotius’s Mare Liberum (“free sea”). Grotius’s famous essay was “an earnest and powerful appeal … made to the civilized world for complete freedom of the high seas for the innocent use and mutual benefit of all.” Grotius declared that the Spanish and Portuguese claims and the papal bulls that granted them were invalid under the “law of nations.”[5] According to Grotius, the sea is res nullius (“nobody’s property”), and as the “common property of all … no one may be lawfully barred from travelling across it.”[6]

The Stuart kings of Great Britain, desiring to retain exclusive fishing rights in waters to their north and west, responded to Grotius by publishing John Selden’s Mare Clausum (“enclosed sea”). But the position argued by Selden “was moribund, opposed to the growing spirit of freedom throughout the world and to the emerging principle of mare liberum.” Grotius’s view regarding dominion over the seas prevailed:

The Law of Nations developed along the lines proposed by Grotius. More and more, the principle was recognized that the high seas should be open and free for the use of all nations. No nation could prevent another from carrying on traditional activities at sea. The exclusive sovereign claims over vast areas of the sea had to be abandoned.[7]

Centuries have passed since acceptance of the Grotian view that no nation may claim or exercise sovereignty over the world’s oceans, with the exception of a narrow band of water extending from the nation’s coast known as the “territorial sea.” By the early 19th century, it was “almost universally accepted” that the breadth of the territorial sea was three nautical miles (nm) and that any waters seaward of that limit were open to navigation for the ships of all nations.[8]

Four hundred years after the publication of Mare Liberum, the Chinese government has claimed sovereign rights over the entire South China Sea through its “nine-dash line” claim. On May 6, 2009, Malaysia and Vietnam made a joint submission to the Commission on the Limits of the Continental Shelf regarding the outer limits of their respective continental shelves.[9] The next day, China sent a letter to the U.N. Secretary-General objecting to the Malaysia–Vietnam submission, calling it a serious infringement upon “China’s sovereignty, sovereign rights and jurisdiction in the South China Sea.”[10]

Accompanying China’s letter was a map of the SCS almost encircled by a U-shaped, nine-dash line that begins off the coast of Vietnam, moves south until it reaches a point off the coast of Malaysia, travels northeast to the Philippines, and ends off the east coast of Taiwan. This nine-dash line is apparently based upon a map first issued by China in 1947 when the Kuomintang Nationalists were still in power.

Regarding the legal status of the land features and waters enclosed within the nine-dash line—that is, almost the entire SCS—China’s letter stated:

China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).

While China has never clarified the precise basis of its nine-dash-line claim, the language that China uses in its letter roughly reflects the text of the U.N. Convention on the Law of the Sea (UNCLOS), Article 56, titled “Rights, jurisdiction and duties of the coastal State in the exclusive economic zone.” Specifically, Article 56(a) states that a coastal state has “sovereign rights” in its exclusive economic zone (EEZ) to exploit the living and non-living natural resources in the water and on the seabed,[11] while Article 56(b) states that a coastal state has “jurisdiction” with regard to establishing artificial islands, conducting marine scientific research, and protecting the marine environment.[12]

A generous interpretation of the nine-dash line letter is that China (1) claims sovereignty over all islands within the nine-dash line (e.g., the Spratly and Paracel island groups and the Scarborough Reef) and their adjacent waters (i.e., their respective 12 nm territorial seas) and (2) declares “sovereign rights and jurisdiction” over the “relevant waters” (i.e., the waters seaward of the territorial sea, including a 200 nm EEZ) as well as the seabed extending from the islands. In effect, even if interpreting China’s claim to encompass only SCS land features, it has effectively claimed almost the entire SCS as an EEZ.

The nations that are most adversely affected by China’s nine-dash-line claim are the other SCS coastal states, particularly Vietnam, the Philippines, and other nations that engage in fishing and hydrocarbon exploration in the waters claimed by China. However, China’s nine-dash-line EEZ claim adversely affects the United States as well, not because U.S. vessels engage in commercial activity in the SCS, but because of China’s insistence that it may prohibit certain military activities within its EEZ.

China’s Claims Violate the Law of the Sea

A coastal state that is party to UNCLOS is permitted to claim an EEZ, but only one that extends 200 nm from its shoreline.[13] China’s “nine-dash line” claim, however, encompasses the entire SCS, including parts of the EEZs of other coastal states that border the SCS, including Brunei, Malaysia, the Philippines, Taiwan, Vietnam, and even Indonesia.

In addition, UNCLOS is clear that all nations have the right to navigate their warships on and their aircraft over the EEZ of a coastal state as long as those ships and aircraft do not exploit the natural resources of the EEZ. While military survey activities are considered prejudicial to the peace and security of a coastal state if conducted within its 12 nm territorial sea, nothing in UNCLOS prohibits such activities outside the territorial sea.

China’s position is that military surveys conducted within its EEZ are illegal,[14] but UNCLOS (Part V, “Exclusive Economic Zone”) clearly states that activities within the EEZ relate solely to economic matters, not to military matters.

Article 87 of UNCLOS is titled “Freedom of the high seas” and is in Part VII of the Convention, titled “High Seas.” The article lists the rights of all states while operating on the high seas, including, inter alia, (a) freedom of navigation, (b) freedom of overflight, (c) freedom to lay submarine cables and pipelines, (d) freedom to construct artificial islands and other installations permitted under international law, (e) freedom of fishing, and (f) freedom of scientific research.[15]

Part V sets forth the rights and duties of a state operating within the EEZ of a foreign coastal state. In particular, Article 58 (“Rights and duties of other States in the exclusive economic zone”) makes clear that all states may exercise broad high seas freedoms while operating in a foreign EEZ. Specifically, these states “enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight” within the EEZ of a coastal state, thereby incorporating by reference all of the navigational rights and freedoms listed in Article 87.

By explicitly referencing the rest of Part VII’s navigational provisions, Article 58 additionally makes clear that vessels operating within a foreign EEZ enjoy high seas freedoms: “Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.” Articles 88 to 115 set forth the general provisions applicable to the high seas and include the right of navigation (Article 90), immunity of warships from the jurisdiction of any other state (Article 95), and the right to seize a pirate ship or aircraft (Article 105).

The plain language of UNCLOS is explicit: All states enjoy high seas freedoms, including the freedoms of navigation and overflight, while operating in a foreign EEZ.

U.S. Ratification of UNCLOS Unnecessary

No argument regarding U.S. policy in the SCS may be made without begging the question whether the U.S. should accede to UNCLOS. Proponents of U.S. accession claim that the United States cannot fully protect its maritime interests unless it accedes to the convention. Indeed, UNCLOS’s proponents believe that U.S. membership in the treaty would be determinative in any number of maritime controversies, including Chinese aggression in the SCS. Yet China is unlikely to be swayed by U.S. ratification of a treaty that China regularly violates or simply ignores.

Ratification of UNCLOS will neither sway China nor guarantee U.S. navigational rights in the SCS, which are advanced not by membership in a treaty, but by maintaining a strong Navy, conducting persistent naval operations against China’s excessive maritime claims, supporting key U.S. allies, and adhering to long-standing principles of the customary international law of the sea.

The customary international law of the sea—which includes the principles of freedom of the seas, “innocent passage” through territorial waters, and passage rights through international straits and archipelagoes—existed long before UNCLOS was adopted in 1982. The convention merely codified and elaborated upon these widely accepted principles. While not a party to UNCLOS, the United States—unlike China—actually honors the convention’s provisions. The United States demarcates legitimate maritime boundaries, respects the rights of coastal states within their EEZs and territorial seas, and adheres domestically to the regimes regarding the contiguous zone and EEZ.

No evidence suggests that China, or any other state, would respect its obligations under UNCLOS to a greater extent if the United States became a party. Nor is there any evidence that ratification of UNCLOS would enhance U.S. military capability. The Freedom of Navigation Program, the primary means of the U.S. confronting China’s excessive claims, does not rely on U.S. membership in UNCLOS.

Freedom of Navigation Program. The United States defends its global navigational rights through a combination of diplomatic protests from the State Department and U.S. Navy operations. These efforts directly challenge foreign coastal states by giving them formal notice that the United States will neither recognize nor respect excessive maritime claims.

The United States defended its navigational rights for decades prior to the adoption of UNCLOS in 1982. For example, in 1956, the U.S. protested a Panamanian claim that the Gulf of Panama was a “historic bay.” In 1961, it protested a Philippine claim of straight archipelagic baselines. In 1979, the Navy conducted an operational assertion off the coast of Sudan to protest a requirement that foreign warships obtain prior permission before transiting its territorial sea.[16] Between 1948 and March 1979, the United States issued at least 30 diplomatic protests regarding excessive maritime claims.[17]

These diplomatic and military activities were formally operationalized as the Freedom of Navigation (FON) Program in March 1979 during the Carter Administration.[18]

[The FON Program’s objective] is not just to maintain the legal right to operate freely in and over international waters. The more important objectives are, first, to have other nations recognize and respect the legal right of all nations to operate, in conformity with the navigational provisions of the LOS Convention, in and over the territorial sea and international waters, and second, to minimize efforts by other States to reduce those rights by making excessive maritime claims.[19]

Every U.S. President since President Jimmy Carter has reauthorized and prosecuted the FON Program.[20] When President Ronald Reagan decided not to sign UNCLOS in 1983, he confirmed that the United States would nevertheless continue to protect its navigational rights:

[T]he United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.[21]

More than a decade after the adoption of UNCLOS, the Department of Defense issued an Ocean Policy Review Paper on “the currency and adequacy of U.S. oceans policy, from the strategic standpoint, to support the national defense strategy,” which concluded that U.S. national security interests in the oceans have been protected even though the U.S. is not party to UNCLOS:

U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 Law of the Sea Convention, and as supplemented by diplomatic protests and assertion of rights under the Freedom of Navigation Program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.[22]

This is not to say that the Department of Defense does not support U.S. accession to UNCLOS—it certainly does. However, the Department of Defense does not, and cannot, say that U.S. membership in UNCLOS is absolutely essential to the preservation of navigational rights or that the United States is incapable of protecting those rights unless it accedes to the convention.

The U.S. Navy thrived for more than 180 years from its birth in 1775 through two world wars and developed into a global maritime power, all without membership in UNCLOS. In 1958, the principles of high seas freedom and innocent passage through territorial waters were codified in the first round of law-of-the-sea conventions. Between 1958 and 1982, the Navy continued to fulfill its mission on a global scale. UNCLOS was adopted in 1982, duplicating the navigational provisions of the 1958 conventions and “crystallizing” the concepts of transit passage and archipelagic sea-lanes passage. Since 1982 through the end of the Cold War and to the present day, the Navy continues to prosecute its mission as the world’s preeminent naval power.

In contrast to China, the United States complies with the navigational norms, maritime boundary limits, and all other provisions of customary international law reflected in UNCLOS. China—not the United States—is the law-of-the-sea scofflaw.

Regardless, the United States cannot afford to wait to join UNCLOS before bringing a decisive resolution to the challenges in the SCS. The Senate Foreign Relations Committee has taken the convention under consideration on many occasions, including hearings in 1994, 2003, 2004, and 2007. The committee held four hearings in 2012, but then-chairman Senator John Kerry (D–MA) did not attempt to offer the convention for a committee vote due to stiff opposition by the convention’s detractors.

There is no realistic possibility that the United States will ratify UNCLOS in the near term, or perhaps ever. U.S. policymakers should instead concentrate their efforts on developing and implementing a specific strategy to address intractable problems, such as those the United States faces in the SCS.

China’s Aggressive Pursuit of Its Excessive Claims

In contrast to many other coastal states that make excessive maritime claims about their territorial sea or EEZ but take no action to enforce them, China actively enforces its claims. China’s aggressiveness regarding its maritime and territorial claims in the SCS is not a new phenomenon. China has a history of resorting to force, seizing the western Paracels from Vietnam in 1974, sinking three Vietnamese vessels in 1988, and taking Mischief Reef from the Philippines in 1995.

China’s propensity for confrontation and violence has continued in recent years. Since 2009, the United States, Vietnam, and the Philippines have been repeatedly harassed in the SCS while engaging in lawful activities. Chinese maritime law enforcement and military vessels have regularly confronted, challenged, and sometimes used force against U.S. military survey vessels and Philippine and Vietnamese fishing boats and commercial survey vessels.

Among the more notable incidents in recent years are:

  • March 8, 2009. Five Chinese vessels harassed the USNS Impeccable while it was engaging in lawful military surveillance activities in the SCS approximately 75 miles from Chinese territory. The vessels threatened to collide with the unarmed Impeccable on several occasions and attempted to destroy its towed sonar array.[23]
  • June 11, 2009. A Chinese submarine struck and damaged the sonar array being towed by the USS John S. McCain, an Arleigh Burke-class destroyer operating in the SCS approximately 144 miles outside Subic Bay.[24] (There is ongoing debate about whether the collision was inadvertent.)
  • February 25, 2011. A Chinese frigate fired three shots at Philippine fishing vessel F/V Maricris 12 in Jackson Atoll.[25]
  • March 2, 2011. A seismic survey vessel M/V Veritas Voyager, leased by the Philippines, was harassed in Reed Bank by two Chinese patrol boats.[26]
  • May 21–25, 2011. According to the Philippines, Chinese vessels unloaded construction materials (steel posts) and placed a buoy near Amy Douglas Bank, which is considered to show an intention by China to build a structure and block off the area.[27]
  • May 26, 2011. Chinese patrol boats deliberately cut a submerged cable of the Binh Minh 02 hydrocarbon survey ship operated by PetroVietnam while operating in Vietnamese waters, 80 miles off the south-central coast of Vietnam. China stated that Vietnam’s operations “undermined China’s interests and jurisdictional rights.”[28]
  • June 8, 2011. A Chinese vessel used “specialized cable-cutting equipment” to intentionally damage the seismic exploration cables of the Viking 2 while it was exploring for oil under contract with PetroVietnam.[29]
  • July 5, 2011. Chinese soldiers boarded a Vietnamese fishing boat near the Paracel Islands in disputed waters, punched and kicked its captain, threatened other crew members, and “confiscated” one ton of fish.[30]
  • March 3, 2012. China detained 21 Vietnamese fishermen near the Paracel Islands and held them for seven weeks.[31]
  • April 8, 2012. Philippine and Chinese ships confronted one another at Scarborough Reef after Philippine naval forces boarded Chinese fishing vessels and found endangered sharks, corals, and giant clams.[32]
  • November 30, 2012. Chinese fishing vessels cut the survey cables of the Binh Minh 02 for a second time, this time just outside the Gulf of Tonkin.[33]
  • December 5, 2013. A Chinese warship nearly collided with the guided-missile cruiser USS Cowpens while it was lawfully operating in the SCS.[34]
  • China has slowly but steadily used these tactics to ratchet up the pressure on its smaller neighbors to gain control over various disputed SCS land features. At the same time, it has used a variation of these tactics to raise the stakes for U.S. efforts to assert navigational rights in the SCS, essentially challenging the United States to consider whether its efforts are worth the risk of confrontation.

    The ramifications for U.S. interests are significant. The official U.S. position is to not take a position on the issue of sovereignty over the various SCS land features, but China’s plan to steadily gain control over such features affects U.S. interests in the SCS. Each SCS atoll or coral reef controlled by China provides it with an additional land feature from which to claim—validly or invalidly—a territorial sea and an EEZ. In turn, each EEZ thus claimed by China will be used to further justify its nine-dash-line claim and bolster its protests against U.S. military activities in the waters surrounding the land features.

    The United States therefore does itself a disservice by continuing to pretend that it does not have a stake in the outcome of disputes over SCS land features and sea areas, including fishing grounds and hydrocarbon exploitation areas. It is time for the United States to shift its policy of neutrality on the sovereignty issue.

    Attempts to Resolve SCS Disputes Have Failed

    The nations bordering the SCS, including China, have ostensibly pledged to settle their disputes in a peaceful manner—a pledge that China has repeatedly broken. More than a decade ago, on November 4, 2002, China and all 10 ASEAN nations signed the Declaration on the Conduct of Parties in the South China Sea (DoC), a nonbinding document committing to a peaceful resolution of their disputes.[35] Among other commitments, the DoC parties agreed to “reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea,” and to “undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force.”

    As noted, China has repeatedly violated both the letter and the spirit of the DoC by confronting, often with force or the threat of force, Vietnamese and Philippine vessels operating lawfully in the SCS. China’s repeated aggression belies its rhetoric that it seeks only peaceful solutions to the SCS territorial and resource disputes.

    Perhaps realizing that China has no intention of respecting its commitments under the DoC, the Philippines is attempting to employ a legal avenue—UNCLOS’s mandatory dispute resolution mechanism—to facilitate a resolution of SCS disputes with China. On January 22, 2013, the Philippines instituted an arbitral proceeding against China at the Permanent Court of Arbitration pursuant to UNCLOS, to which both China and the Philippines are parties.[36] Although sovereignty disputes regarding the disputed land features in the SCS are not justiciable under UNCLOS proceedings, the Philippine arbitration case challenges the validity of China’s nine-dash line and its assertion of “sovereign rights and jurisdiction” to essentially the entire SCS—a claim that is, on its face, justiciable under UNCLOS.

    China, understanding the weakness of its nine-dash-line claim, predictably chose not to respect its commitments under UNCLOS to peaceful resolution of disputes through arbitration. Instead, Chinese officials flatly rejected the idea of arbitrating the case pursuant to UNCLOS and have disingenuously claimed that China opted itself out of lawsuits such as this one at the time it ratified UNCLOS. China has also accused the Philippines of violating “the consensus enshrined” in the DoC.[37] China’s behavior increasingly makes clear that UNCLOS rules are largely irrelevant to the outcome of events in the SCS.

    A National Strategy for the South China Sea

    China’s nine-dash line, which is equivalent to a 21st-century mare clausum policy, must be strongly and credibly countered. Given Chinese actions in recent years to advance the legitimacy of its nine-dash-line claim by asserting control over SCS land features, concrete U.S. policy red lines are warranted.

    The United States should make clear to China that the United States places a high priority on protecting its national interests in the SCS. Such a marked shift in U.S. policy, rather than accepting the status quo and hoping for the best, is both necessary and justified due to China’s proven belligerence and its general reluctance to resolve SCS disputes peacefully.

    The United States should therefore develop and promulgate a National Strategy for the South China Sea. Specifically, the U.S. should:

    1. Take an official position regarding disputed SCS land features. The United States no longer has the luxury of staying out of SCS sovereignty disputes. Control of SCS land features is a zero-sum game. For example, although Vietnam and China dispute which nation has sovereignty over the Paracel Islands, China has exercised effective control over them since 1974 and is highly unlikely ever to surrender that control. Since it controls the Paracels, China is in a stronger position to make excessive maritime claims in the waters surrounding the islands than if it did not control the islands.

      Each coral reef and atoll controlled by China is an additional land feature from which China may make excessive claims and that may serve as a justification to disrupt lawful U.S. military activities, including survey and intelligence operations. It is contrary to U.S. interests for China to gain control over additional SCS land features. To continue to avoid the sovereignty issue, politically sensitive though it is, irresponsibly risks expansion of Chinese control over the SCS.

      The United States should make public whether it considers the various land features in the SCS as islands or mere “rocks.” While islands are permitted a 12 nm territorial sea and a 200 nm EEZ, rocks “which cannot sustain human habitation or economic life” are permitted only a territorial sea.[38] In this manner, the United States may make clear to SCS nations where it has a right to assert its navigational freedoms without becoming entangled in their ongoing territorial disputes.

    2. Underscore U.S. policy on military activities in the SCS. The legality of military activities in the SCS, including military survey and intelligence gathering, is a major sticking point between the United States and China. A legal memorandum emphasizing the U.S. position on its navigational rights in the SCS would help to further clarify the matter. In addition to reiterating long-standing U.S. priorities in the SCS (i.e., respect for international law, freedom of the seas, maintenance of security and stability, and unimpeded commerce and economic development),[39] the NSSCS should delineate the U.S. case regarding the legality of military survey activities in the EEZ.

    3. Continue freedom-of-navigation protests and naval operations. The United States has repeatedly issued diplomatic protests (in 2001, 2002, and 2007) to China regarding its Order No. 75, which purports to restrict military surveys within its EEZ. The U.S. Navy has also conducted regular operational assertions (in fiscal years 2007–2012) to protest China’s policy.[40] These protests must, at a minimum, continue apace. Yet more frequent naval assertions would signal that the United States is elevating the issue beyond “business as usual” in the SCS.

      Optimally, the U.S. should conduct such operations with one or more allies in the region, such as Australia and Japan, that have the naval capabilities to participate. Vietnam and the Philippines, whose fishing and commercial survey activities have been repeatedly interfered with by China, may also be willing to engage in joint operations.

    4. Publish a “Limits in the Seas” report regarding the nine-dash line. The United States issues regular reports on various aspects of the law of the sea in regard to maritime claims made by foreign nations. Since 1970, the State Department has published more than 130 reports regarding straight baselines, maritime and continental shelf borders, and territorial sea claims.[41] One section of the NSSCS should contain a legal review of and rejoinder to China’s excessive maritime claims in the SCS, including its nine-dash-line map and its domestic legislation purporting to restrict military activities within its EEZ. The NSSCS should also contain the U.S. position on whether land features in the SCS qualify as islands or “rocks.”

      This legal review should also be published separately as a “Limits in the Seas” report and submitted to the U.N. Law of the Sea Bulletin for publication.[42] The State Department should consider producing separate reports on China’s other excessive maritime claims concerning its contiguous zone and its attempt to draw baselines around the Senkaku Islands. The United States should consider joining Japan’s protest to the Commission on the Limits of the Continental Shelf regarding China’s baseline claim regarding the Senkakus.[43]

    5. Assist SCS nations in complying with the law of the sea. The United States needs to convince its friends and allies in the region to bring their domestic law and practice into compliance with the law of the sea. Several SCS nations (other than China) have made excessive maritime claims, including claims restricting access to their territorial sea and the exercise of military activities in their EEZs. Such claims permit China to take the position that it is acting in the same manner as its neighbors. The United States should, through bilateral negotiations, work with SCS nations to abandon their excessive claims and thereby present a united legal front to China. U.S. assistance to these nations to resolve any outstanding maritime boundary issues would also be helpful.

    6. Support arbitration cases against China. The United States should not remain a neutral observer in the arbitration case filed by the Philippines against China. A decision in arbitration in favor of the Philippines, discrediting the nine-dash line, would advance U.S. interests. The United States should urge other nations—particularly Vietnam and Malaysia and also Brunei and Indonesia—to openly support the Philippines and to initiate arbitration cases of their own against China on the same legal grounds. Since these nations have chosen to be party to UNCLOS, they may as well take advantage of its dispute resolution process to attempt to peacefully resolve the legality of China’s excessive claims. China will undoubtedly refuse to arbitrate with any nation, which should further isolate it from other SCS nations.

    7. Preempt potentially harmful provisions of an SCS “code of conduct.” For many years, the nations of ASEAN and China have been negotiating a binding “code of conduct” document regarding the SCS. A firm legal position regarding military activities in the EEZ will make clear that the U.S. will not consent to a code of conduct that violates either customary international law or UNCLOS. Specifically, the NSSCS should note that any code of conduct that purports to restrict or prohibit military activities in the SCS or in any EEZ is unacceptable and that the U.S. will not comply with any such restriction.

      Of course, there is no guarantee that China will alter its behavior for the better if the United States shifts its policies in the manner recommended in this paper. Indeed, the release of an NSSCS may precipitate additional Chinese aggression in the short term. These policy recommendations are not meant to create an immediate beneficial effect, but instead are designed to shape the conditions in the SCS so that the festering disputes may be peacefully and definitively resolved in the mid-to-long term.

    8. Managing Blowback

      The South China [Sea] issue is not America’s business…. It’s between China and its neighbors.

      —General Ma Xiaotian, Deputy Chief of General Staff, People’s Liberation Army, May 2012[44]

      China will likely vigorously protest the release of a national strategy document on the SCS. Chinese officials complain even when U.S. officials merely restate long-standing and seemingly uncontroversial U.S. policies in the region. In July 2011, Secretary of State Hillary Clinton said that the United States opposes “the threat or use of force by any claimant in the South China Sea to advance its claims or interfere with legitimate economic activity.”[45] Even though Clinton’s statement fell well within the four corners of the Declaration of Conduct, Chinese Foreign Minister Yang Jiechi called her comments an “attack” on China.[46]

      Any Chinese protests over a national strategy document should be treated as disingenuous posturing. First, the United States has promulgated comprehensive policy statements regarding the Asia–Pacific region in the past.[47] During the 1990s, the Department of Defense issued four East Asia Strategy Reports to “explain DoD’s security strategy for the region to Congress, our allies and friends, and the American public.”[48] The 1990 and 1992 reports outlined the U.S. military’s proposed changes in global strategy and force structure in response to the end of the Cold War, while the 1995 and 1998 reports reaffirmed U.S. security commitments to the region and stated an intention to maintain approximately 100,000 military personnel in the region.[49] Regarding the SCS, the 1995 report stated, “The United States has urged peaceful settlement of South China Sea issues, and strongly opposes the threat or use of military force to assert any nation’s claim.”[50] More recently, in January 2012, the Department of Defense released two strategy and budget documents making clear U.S. intentions to place greater emphasis on the Asia–Pacific region.[51]

      In addition, the United States has developed national security strategy documents regarding other strategic regions. For instance, the Obama Administration released two strategy documents relating to U.S. interests in the Arctic: “National Strategy for the Arctic Region” released by the White House in May 2013 and “Arctic Strategy,” released by the Department of Defense in November 2013.[52] Whether in the Asia–Pacific or another strategic region, it is hardly unprecedented that the United States should promulgate a comprehensive policy statement regarding its strategic interests in the SCS.

      Any Chinese protests concerning the proposed NSSCS would also be hypocritical. Given China’s clear intentions to stake a claim in the Arctic—a region that is very far from its shores—China cannot credibly complain about the U.S. protecting its interests in the SCS. China has vigorously pursued its purported interests in the Arctic. In a March 2010 speech to the Peoples’ Political Consultative Conference, retired Rear Admiral Yin Zhuo declared that the “Arctic belongs to all the people around the world as no nation has sovereignty over it.”[53] Chinese Arctic specialists have described China as a “near-Arctic state” and a “stakeholder” in Arctic affairs.[54] Other Arctic nations, including the United States, granted China “ad hoc” observer status at the Arctic Council in 2007 and permanent observer status in 2013.

      The U.S. should not avoid aggressively challenging China’s nine-dash line and its excessive maritime claims for fear that it could lead to a confrontation. At times, direct confrontation is necessary to resolve intractable problems. For example, in February 1988, U.S. and Soviet warships collided in the Black Sea while the U.S. was challenging the USSR’s excessive maritime claim regarding its territorial sea.[55] The “Black Sea bumping” incident did not result in an armed conflict or even an exchange of gunfire. To the contrary, the following year, the two nations signed a joint statement acknowledging reciprocal passage rights through each other’s territorial waters.[56]

      Similarly, the recent near collision between the USS Cowpens and a Chinese naval vessel illustrates the potential for misunderstandings and unexpected conflict in the SCS. The United States should unequivocally clarify its interests, intentions, and policies in the SCS. Any possible diplomatic blowback is preferable to an armed exchange.

      Conclusion

      China’s intentions in the South China Sea are clear: a steady campaign to gain control of land features for the purpose of establishing a massive EEZ throughout the SCS in an attempt to justify its nine-dash-line claim. As it continues to expand its civilian police and military fleets, China will be in a strong position to harass and interfere with U.S. military activities in the SCS and destabilize the region by disrupting Vietnamese and Philippine commercial activities.

      The stakes for the United States on this issue go beyond the SCS. International law is universal in its application, and China’s challenge to it in the SCS, if not countered, may set a precedent for other nations to make similar challenges in other parts of the world. Such a development would further affect the ability to defend U.S. national interests in those areas and add momentum for a shift from a mare liberum world to a mare clausum world.

      China’s nine-dash line must therefore be met with U.S. red lines, sooner rather than later. The United States should act firmly while it can still exercise military superiority in the Asia–Pacific region in general and the SCS in particular. The momentum of events in the SCS needs to shift from one in which China persistently bullies its smaller neighbors into surrendering land features into one in which China must adapt its behavior to comply with international law.

      A National Strategy for the South China Sea would be an important first step in changing that momentum.

      —Steven Groves is Bernard and Barbara Lomas Senior Research Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation. Dean Cheng is a Research Fellow for Chinese Political and Security Affairs in the Asian Studies Center at The Heritage Foundation.

    Show references in this report

    [1] John Selden, Mare Clausum: Of the Dominion, or, Ownership of the Sea, 2 vols. (London: William Du-Gard, 1652; Clark, NJ: Lawbook Exchange, Ltd., 2004).

    [2] Permanent Mission of the People’s Republic of China to the United Nations, letter to Ban Ki-moon, May 7, 2009, http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf (accessed February 21, 2014).

    [3] Bo Johnson Theutenberg, “Mare Clausum et Mare Liberum,” Arctic, Vol. 37, No. 4 (December 1984), pp. 488–489.

    [4] Ibid., p. 490.

    [5] Ibid., p. 491.

    [6] Monica Brito Vieira, “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate on Dominion over the Seas,” Journal of the History of Ideas, Vol. 64, No. 3 (July 2003), p. 370.

    [7] Theutenberg, “Mare Clausum et Mare Liberum,” p. 492.

    [8] Tommy T. B. Koh, “Negotiating a New World Order for the Sea,” Virginia Journal of International Law, Vol. 24, No. 4 (1984), pp. 762 and 763.

    [9] Commission on the Limits of the Continental Shelf, “Joint Submission by Malaysia and the Socialist Republic of Viet Nam,” updated May 3, 2011, http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm (accessed February 21, 2014).

    [10] Permanent Mission of the People’s Republic of China to the United Nations, letter to Ban Ki-moon.

    [11] Coastal states also have sovereign rights “with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.” United Nations Convention on the Law of the Sea (hereafter UNCLOS), art. 56(1)(a), December 10, 1982, 1833 U.N.T.S. 397. See also Brian Wilson, “An Avoidable Maritime Conflict: Disputes Regarding Military Activities in the Exclusive Economic Zone,” Journal of Maritime Law & Commerce, Vol. 41, No. 3 (July 2010), p. 423.

    [12] UNCLOS, art. 56(1)(b). Article 56 also contains a residual clause stating that a coastal state has “other rights and duties” in its EEZ as “provided for in the convention.”

    [13] UNCLOS, art. 57.

    [14] See “Surveying and Mapping Law of the People’s Republic of China,” Order of the President of the People’s Republic of China No. 75, August 29, 2002, http://english.gov.cn/laws/2005-10/09/content_75314.htm (accessed February 21, 2014).

    [15] UNCLOS, art. 87(1).

    [16] U.S. Department of Defense, Under Secretary of Defense for Policy, Maritime Claims Reference Manual, June 23, 2005, pp. 452, 463, and 575, http://www.jag.navy.mil/organization/documents/mcrm/MCRM.pdf (accessed February 21, 2014).

    [17] J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, 2nd ed. (The Hague: Martinus Nijhoff Publishers, 1996), pp. 7–8.

    [18] Ibid., p. 5.

    [19] Ibid., p. 8.

    [20] See Ronald Reagan, “United States Program for the Exercise of Navigation and Overflight Rights at Sea,” National Security Decision Directive No. 72, December 13, 1982, http://www.reagan.utexas.edu/archives/reference/Scanned%20NSDDS/NSDD72.pdf (accessed February 21, 2014), and George H. W. Bush, “Freedom of Navigation Program,” National Security Directive No. 49, October 12, 1990.

    [21] Ronald Reagan, “Statement on United States Oceans Policy,” March 10, 1983, http://www.reagan.utexas.edu/archives/speeches/1983/31083c.htm (accessed February 21, 2014).

    [22] U.S. Department of Defense, “DOD Ocean Policy Review Paper,” 1993, in hearing, Current Status of the Convention on the Law of the Sea, Committee on Foreign Relations, U.S. Senate, 103rd Cong., 2nd Sess., pp. 76–94.

    [23] Jonathan Odom, “The True ‘Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned,” Michigan State Journal of International Law, Vol. 18, No. 3 (2010).

    [24] David Carter and Erik Slavin, “USS McCain Arrives at Sasebo After Suffering Damage to Sonar Array,” Stars and Stripes, June 17, 2009, http://www.stripes.com/news/uss-mccain-a(accessed rrives-at-sasebo-after-suffering-damage-to-sonar-array-1.92521 (accessed February 21, 2014).

    [25] Tessa Jamandre, “China Fired at Filipino Fishermen in Jackson Atoll,” ABS-CBN News, June 3, 2011, http://www.abs-cbnnews.com/-depth/06/02/11/china-fired-filipino-fishermen-jackson-atoll (accessed February 24, 2014).

    [26] Ian Storey, “China and the Philippines: Implications of the Reed Bank Incident,” Jamestown Foundation China Brief, May 6, 2011, http://www.jamestown.org/single/?tx_ttnews%5Btt_news%5D=37902&tx_ttnews%5BbackPid%5D=517 (accessed February 24, 2014), and Peter A. Dutton, “The Sino–Philippine Row: International Arbitration and the South China Sea,” Center for a New American Security East and South China Seas Bulletin No. 10, March 15, 2013, http://www.cnas.org/files/documents/publications/CNAS_Bulletin_Dutton_TheSinoPhilippineMaritimeRow_0.pdf (accessed February 24, 2014).

    [27] Rommel C. Banlaoi, “A Mischief Reef in the Making?” Declassified Information, June 3, 2011, http://declassifiedrommelbanlaoi.blogspot.com/2011/06/mischief-reef-in-making.html (accessed February 24, 2014).

    [28] Voice of Vietnam, “Chinese Marine Surveillance Ships Violate Vietnam’s Sovereignty,” May 28, 2011, http://english.vov.vn/Politics/Chinese-marine-surveillance-ships-violate-Vietnams-sovereignty/225186.vov (accessed February 24, 2014), and BBC News, “Vietnam Accuses China in Seas Dispute,” May 30, 2011, http://www.bbc.co.uk/news/world-asia-pacific-13592508 (accessed February 24, 2014).

    [29] VietNamNet, “Vietnam’s Vessel Viking 2 ‘Harassed’ Many Times,” June 10, 2011, http://english.vietnamnet.vn/fms/government/8963/vietnam-s-vessel-viking-2--harassed--many-times.html (accessed February 24, 2014).

    [30] Associated Press, “Vietnam: Chinese Soldiers Attack Fishermen,” Yahoo News, July 14, 2011, http://news.yahoo.com/vietnam-chinese-soldiers-attack-fishermen-052853883.html (accessed February 24, 2014).

    [31] BBC News, “China Frees Vietnamese Fishermen Held on Paracel Islands,” April 21, 2012, http://www.bbc.co.uk/news/world-asia-17796451 (accessed February 24, 2014).

    [32] Jane Perlez, “Philippines and China Ease Tensions in Rift at Sea,” International New York Times, June 18, 2012, http://www.nytimes.com/2012/06/19/world/asia/beijing-and-manila-ease-tensions-in-south-china-sea.html (accessed February 24, 2014).

    [33] Vietnam News Agency, “PetroVietnam Protests Chinese Ships’ Cutting of Survey Cable,” People’s Army Newspaper Online, December 4, 2012, http://www.qdnd.vn/qdndsite/en-US/75/72/306/306/306/218761/Default.aspx (accessed February 24, 2014), and Vietnam News Agency, “PetroVietnam Protests Chinese Ships’ Breakage of Survey Cable,” December 13, 2012, http://en.vietnamplus.vn/Home/PetroVietnam-protests-Chinese-ships-breakage-of-survey-cable/201212/30304.vnplus (accessed February 24, 2014).

    [34] Jon Harper, “Chinese Warship Nearly Collided with USS Cowpens,” Stars and Stripes, December 13, 2013, http://www.stripes.com/news/pacific/chinese-warship-nearly-collided-with-uss-cowpens-1.257478 (accessed February 24, 2014).

    [35] Association of Southeast Asian Nations, “Declaration on the Conduct of Parties in the South China Sea,” November 4, 2002, http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea (accessed February 24, 2014).

    [36] See The Republic of the Philippines v. The People’s Republic of China, Permanent Court of Arbitration, http://www.pca-cpa.org/showpage.asp?pag_id=1529 (accessed February 24, 2014).

    [37] Xinhua, “China Rejects Philippines’ Arbitral Request,” China Daily, February 19, 2013, http://www.chinadaily.com.cn/china/2013-02/19/content_16238133.htm (accessed February 24, 2014).

    [38] UNCLOS, art. 121.

    [39] Jonathan G. Odom, “Where’s the Stake? U.S. Interests in the South China Sea,” Third International Workshop of the East Sea (South China Sea) Studies, February 15, 2012, http://nghiencuubiendong.vn/en/conferences-and-seminars-/the-third-international-workshop-on-south-china-sea/671-wheres-the-stake-us-interests-in-the-south-china-sea-by-jonathan-g-odom (accessed February 24, 2014).

    [40] See U.S. Department of Defense, Under Secretary of Defense for Policy, Maritime Claims Reference Manual, s.v. “China, People’s Republic of,” April 2013, http://www.jag.navy.mil/organization/documents/mcrm/China2013.pdf (accessed February 24, 2014).

    [41] U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Ocean Affairs, “Limits in the Seas,” http://www.state.gov/e/oes/ocns/opa/c16065.htm (accessed February 24, 2014).

    [42] U.N. Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, “The Law of the Sea Bulletins,” http://www.un.org/depts/los/doalos_publications/los_bult.htm (accessed February 24, 2014).

    [43] Commission on the Limits of the Continental Shelf, “Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baselines: Submission by the People’s Republic of China,” August 15, 2013, http://www.un.org/depts/los/clcs_new/submissions_files/submission_chn_63_2012.htm (accessed February 24, 2014).

    [44] Jane Perlez, “Beijing Exhibiting New Assertiveness in South China Sea,” International New York Times, May 31, 2012, http://www.nytimes.com/2012/06/01/world/asia/beijing-projects-power-in-strategic-south-china-sea.html (accessed February 24, 2014).

    [45] Hillary Rodham Clinton, “The South China Sea,” U.S. Department of State, July 22, 2011, http://www.state.gov/secretary/20092013clinton/rm/2011/07/168989.htm (accessed February 24, 2014).

    [46] Associated Press, “China: US Comments on S China Sea Are an ‘Attack,’” The Jakarta Post, July 25, 2010, http://www.thejakartapost.com/news/2010/07/25/china-us-comments-s-china-sea-are-039attack039.html (accessed February 24, 2014).

    [47] Patrick M. Cronin, “Contested Waters: Managing Disputes in the East and South China Seas,” Center for a New American Security East and South China Seas Bulletin No. 6, December 2012, http://www.cnas.org/files/documents/publications/CNAS_Bulletin_Cronin_ContestedWaters.pdf (accessed February 24, 2014).

    [48] News release, “East Asia Strategy Report,” U.S. Department of Defense, February 27, 1995, http://www.defense.gov/releases/release.aspx?releaseid=380 (accessed February 24, 2014).

    [49] U.S. Department of Defense, “The United States Security Strategy for the East Asia–Pacific Region 1998,” p. 5, http://www.dod.gov/pubs/easr98/easr98.pdf (accessed February 24, 2014).

    [50] U.S. Department of Defense, “United States Security Strategy for the East Asia–Pacific Region 1995,” p. 20, http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA298441 (accessed February 24, 2014).

    [51] U.S. Department of Defense, “Sustaining U.S. Global Leadership: Priorities for 21st Century Defense,” January 2012, http://www.defense.gov/news/defense_strategic_guidance.pdf (accessed February 24, 2014), and U.S. Department of Defense, “Defense Budget: Priorities and Choices,” January 2012, http://www.defense.gov/news/Defense_Budget_Priorities.pdf (accessed February 24, 2014). For a comprehensive review of the U.S. posture toward China, see Ronald O’Rourke, “China Naval Modernization: Implications for U.S. Navy Capabilities—Background and Issues for Congress,” Congressional Research Service Report for Congress, September 5, 2013, http://www.fas.org/sgp/crs/row/RL33153.pdf (accessed February 24, 2014).

    [52] The White House, “National Strategy for the Arctic Region,” May 2013, http://www.whitehouse.gov/sites/default/files/docs/nat_arctic_strategy.pdf (accessed February 24, 2014), and U.S. Department of Defense, “Arctic Strategy,” November 2013, http://www.defense.gov/pubs/2013_Arctic_Strategy.pdf (accessed February 24, 2014).

    [53] Shyam Saran, “India’s Stake in Arctic Cold War,” The Hindu, February 2, 2012, http://www.thehindu.com/opinion/op-ed/article2848280.ece (accessed February 24, 2014).

    [54] Gwynn Guilford, “What Is China’s Arctic Game Plan?” The Atlantic, May 16, 2013, http://www.theatlantic.com/china/archive/2013/05/what-is-chinas-arctic-game-plan/275894/ (accessed February 24, 2014).

    [55] John W. Rolph, “Freedom of Navigation and the Black Sea Bumping Incident: How ‘Innocent’ Must Innocent Passage Be?” Military Law Review, Vol. 135 (Winter 1992), pp. 137–165, http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/276475~1.pdf (accessed February 24, 2014).

    [56] “Uniform Interpretation of Norms of International Law Governing Innocent Passage,” September 23, 1989, reprinted in Law of the Sea Bulletin, No. 14, December 1989, pp. 12–13, http://www.un.org/depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulE14.pdf (accessed February 24, 2014). The idea of negotiating an “incidents at sea” agreement with China (as was done between the U.S. and Soviet Union in 1972) has, in the author’s view, been persuasively rejected. See Pete Pedrozo, “The U.S.–China Incidents at Sea Agreement: A Recipe for Disaster,” Journal of National Security Law & Policy, Vol. 6, No. 1 (2012), p. 207, http://jnslp.com/2012/08/29/the-u-s-china-incidents-at-sea-agreement-a-recipe-for-disaster/ (accessed February 24, 2014).

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