Monday, August 11, 2014

The Balloon Goes Up Over the South China Sea

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

Back on July 13, I wrote about US frustration with successful PRC efforts—symbolized by but not limited to the HYSY 981 drilling rig outrage--to defy the U.S. campaign to deter PRC assertiveness in the South China Sea:


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

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

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

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

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

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

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

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


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

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

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

Nevertheless, in its background briefing, the United States delegation declared victory:

Clearly, we have succeeded in our mission, which is to try to seed the clouds of conversation…

This apparently was not enough for some journalists:

QUESTION: So coming back to what Matt was pressing on the freeze, I mean, that’s not going to be agreed this time.
SENIOR ADMINISTRATION OFFICIAL: So I think that you want to --
SENIOR STATE DEPARTMENT OFFICIAL: That was never the expectation.
SENIOR STATE DEPARTMENT OFFICIAL: Yeah. So the whole purpose was to shape the conversation, focus the conversation in the region on the behavior and the assertions that are occurring, and making sure that the pressure stays on those people making – those countries asserting their behavior. 

Some headlines spun it the US way:

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

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

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

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

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

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

The South China Sea should not be the next one.


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

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

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

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

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

Therefore, whenever a challenge appears and poses a threat to peace and stability in EEZs, then not only the U.S. but also the entire world community will take action against the threat, the senator said. [emphasis added]

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

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

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

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

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

As far as I have been able to determine, disputes about EEZ activities have been addressed bilaterally by coast guard and maritime patrol vessels, particularly in the South China Sea, where the PRC, Vietnam, and Philippines harass each other’s fisherman and oil exploration vessels.  Third parties, let alone the “entire world community” have never been involved.

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

As recently as March 2014, judging by a Congressional Research Service report, the main U.S. concern was that PRC EEZ disputes remain non-military, to prevent the US getting sucked into a conflict by virtue of its treaty obligations to Japan and the Philippines:

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

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

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

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

Plenty of options.

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

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

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

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

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

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

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

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

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

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

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

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

Unfortunately, these are not ordinary times.

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

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

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

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

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

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

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

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

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