China as an EEZ Outlaw in the South China Sea

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

A few reasons why attention should be paid.

First, the institution.

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

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

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

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

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

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

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

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

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

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

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

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

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

Third, the subject matter.  

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

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

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

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

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

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

The Pedrozo analysis differs in part from two other third party analyses, one by Dr. Marwyn S. Samuels, an American scholar, who wrote the first detailed study on the origins of

the disputes among China, Vietnam and in the Philippines. A meticulous scholar who used Vietnam and Chinese sources, his Contest for the South China, holds up very well some 40 years later. Samuels concluded that China had the better claim to the Paracels, but that China’s claim to the Spratly’s was “highly questionable.” His judgments were partially echoed by Australian scholar Dr. Greg Austin, who has legal training. In his well‐regarded China’s Ocean Frontier, published in 1998. Austin found that China had “superior rights in the Paracels,” but the legal complexity of the disputed Spratly claims meant that, “PRC claims to the entire Spratly group are at least equal to any other.”

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

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

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

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

Whassup?

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

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

But even if the “territorial sea” was disregarded, the rig was still within 200 nautical miles of Woody Isle, the inhabited “capital” of the PRC’s SCS empire, which the Vietnamese themselves had admitted deserved EEZ treatment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This might not turn out to be the US leadership for which ASEAN is notoriously pining.

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

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

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

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

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

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

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

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

A Quiet Revolution in the South China Sea

Is the PRC Ditching the Nine Dash Line?

Without any ambiguity, the People’s Republic of China has announced that it considers itself and not the United States the boss in the South China Sea.  Its most assertive statement of this principle was to send the HYSY 981 rig, escorted by a flotilla of dozens of ships, into waters that Vietnam claims as its Exclusive Economic Zone for some exploratory drilling, right after president Obama made a trip to Asia (but, tellingly and perhaps unwisely, not to the PRC) to talk up the US pivot.

In keeping with the PRC pattern of avoiding overtly military operations—those that would justify the invocation of existing or new U.S. security alliances with PRC neighbors—the flotilla apparently included no PLAN vessels, and the objectives and disputes surrounding the rig have been characterized in economic/bilateral terms.

In its attempts to present itself as a responsible and competent steward of the South China Sea—and in order to bring Vietnam to heel and isolate the Philippines for the next, much more complex and risky round of “salami slicing”--the PRC might be prepared to make a major shift in its South China Sea maritime claims.

Alert readers (admittedly, China Matters has no other kind) will immediately grasp the significance of this passage from the May 31 People’s Daily:

The truth is, so far China and Vietnam have not reached consensus on delimiting their exclusive economic zones and continental shelves, but the waters in which the oil rig is operated are only 17 nautical miles (31.5 kilometers) from Zhongjian Island of China’s Xisha Islands while about 150 nautical miles from Vietnam’s coast. In other words, the drilling site is located only five nautical miles from the outer limit of China’s territorial sea and is undeniably within China’s exclusive economic zone, regardless of whichever principle is applied in future delimitation.

The People’s Republic of China is claiming the right for its HYSY 981 drilling rig to operate at its current location based upon an EEZ justification, not by its position within the notorious “cow tongue”, the area enclosed by the “nine-dash-line”.

Over the last year there have been several informal indications that the PRC is planning to move beyond the anachronistic “nine-dash-line” as the basis for its South China Sea claims, and haggle with its neighbors on the basis of the UN Convention on the Law of the Sea, with its maritime claims based on sovereignty, territorial waters, and Exclusive Economic Zones or EEZs.

That is big news for the South China Sea and, perhaps, bad news for the United States, which has relied on the patent absurdity of the nine-dash-line claim to justify its role as the sensible adult in the SCS.

For clarification, the general principle is that a coastal state like Vietnam is accorded an EEZ of at least 200 nautical miles or even more if the continental shelf justifies—provided there is no conflict with the EEZ of an island held by another state.

In the case of a conflicting island claim, the coastal claim does not gain automatic precedence; nor is there a standard formula for drawing an EEZ boundary between the two claims.  For instance, there is no principle that the boundary be drawn at the midline between the coastal baseline and the island baseline.  UNCLOS calls for the boundary to be drawn on the basis of “equity”, taking factors like the populations of the immediate EEZ claimants into account.  

Vietnam would clearly get the lion’s share of EEZ in the direction of the Paracels, but its position that its continental shelf claim entitles it to the spot where the HYSY 981 is drilling—and any complicating claims to a Paracels EEZ can be ignored-- is less defensible. 

The PRC position (reflected in the reference to “regardless of whichever principle is applied in further delineation”) is that the Paracels is going to get something, at least something more than five miles beyond Zhongjian Island’s territorial waters, and the HYSY 981 is covered.  

Since we’re talking about the South China Sea, the situation is even more complicated.

In 1996, the PRC drew a single baseline around all the Paracels, essentially treating them as a single archipelagic group; Zhongjian Island, a.k.a. Triton Island is the basis for the southwestern corner of the claim.  The Chinese position is that the archipelagic grouping as a whole (or, per the PRC formulation, “territorial sea”) is, leaving aside for a moment the issue of conflict with a neighboring EEZ, entitled to a 200 nautical mile EEZ beyond the baseline, hence the invocation of the rig’s propinquity to Zhongjian Island as defense of its legality.

This is not kosher by UNCLOS standards; only essentially archipelagic states (like Philippines but not continental states like the PRC and Vietnam) are supposed to enjoy this treatment.  Furthermore, the above-water real estate inside the claim is miniscule, and doesn’t even come close to the UNCLOS standard that the ratio of watery realm to land features should not exceed 9:1.  Therefore, if the archipelagic claim is thrown out, the best the PRC could do would be to claim a 12 nautical mile territorial waters around Zhongjian/Triton Island itself.  Since the island is uninhabited and incapable of sustaining economic life, it gets no EEZ and apparently leaves the HYSY 981 hanging.

However, to further muddy the waters, several coastal states have ignored these restrictions on archipelagic claims when defining baselines for island groups (for instance, Denmark on the Faroes and Ecuador on the Galapagos).

And, in bad news for Vietnam, the PRC has been able to create a simulacrum of human habitation and economic life on Woody Island in the Paracels.  Woody Island is the designated seat of the Sansha Prefecture of Hainan Province, with a small town maintained by a monthly supply boat, an airstrip, and the prospect of patriotic tourism, thereby creating a plausible claim for itself to a 200 nautical mile EEZ …which would also cover the current position of HYSY 981, 103 nautical miles away.

Previously, Vietnamese representatives, perhaps unwisely assuming that the PRC would never abandon the nine-dash-line, had publicly acknowledged there is a case for allowing Woody Island an EEZ.

Therefore, Vietnam appears to be in something of a bind here.

According to an authoritative looking if officially unofficial paper from August 2013 by Hong Thao Nguyen of the Law Faculty of Vietnam National University, Vietnam’s position on the Paracels is based on three principles: sovereignty over the Paracels, rejection of the nine-dash-line, and the assertion that the issue should be addressed multi-laterally instead of bilaterally.

As yet, the world largely follows the U.S. lead and does not take positions on island sovereignty, so point 1 is out.  If the PRC is switching to an EEZ basis for its claims, then point 2 is out.  And if points 1 and 2 are out, there is no strong basis for taking a bilateral spat to a multilateral forum.

And on technical ground, if the PRC shifts the terms of debate for HYSY 981 away from the nine-dash-line to UNCLOS and EEZ, Vietnam’s claims to the spot the rig now occupies do not appear to be a slam dunk.

Adoption of an EEZ dispute formulation would also appear to create a major political problem for Vietnam.

For Vietnam to negotiate an EEZ settlement with the PRC would involve Vietnam acknowledging PRC sovereignty over the Paracels and China’s as yet undefined yet genuine rights to some EEZ treatment.

This, I imagine, is an impossibly bitter pill for the Vietnamese government to swallow at the present time, given the intensity of anti-Chinese anger that roils Vietnam.

And if Vietnam can’t accept PRC sovereignty over the Paracels, the dispute can’t go to UNCLOS arbitration, it’s a sovereignty dispute, and all those carefully parsed arguments about EEZs and penetrating legal critiques of the nine-dash-line are completely irrelevant.

If this is the case, the PRC has rather carefully and maliciously hoisted Vietnam on a cleft stick.

Indeed, beyond asserting the right to drill holes in Vietnam’s continental shelf, Vietnamese acknowledgement of PRC sovereignty over the Paracels may be the key concession that China is trying to extract from its unhappy neighbor.

And maybe that’s the deal the PRC is offering Vietnam and, by extension, ASEAN: an agreement to play by UNCLOS rules if its sovereignty claims in the SCS are accepted.

Beyond categorical declarations of its absolute superiority of its continental shelf claims, Vietnam appears to be trying to find a way out of its dilemma through the politics of outrage: using heated rhetoric and provocative approaches to the PRC flotilla by various vessels in the hope that the PRC will do something so stupid and outrageous that the arcane and fraught issue of conflicting EEZ and sovereignty claims will be superseded by the easier-to-understand and cathartic issue of battling Chinese aggression.

For Americans, this situation would conjure up ironic memories of another provocation in Vietnamese waters, the 1964 Gulf of Tonkin incident that the U.S. hyped as an excuse to sidetrack informed debate and escalate its intervention in the Vietnam War.

Remarkably, even though the global China-bashing machine is on hair trigger, there seems to be little appetite as yet for indulging Vietnam.  Even when a Vietnamese fishing boat flipped and sank in a dustup with the HYSY 981 flotilla—an incident that would have supplied ample grist for the anti-China media mill regardless of the inevitably disputed facts of the encounter-- the international response was remarkably muted.

Whether this is owing to recognition of the fundamental ambiguity of the PRC-Vietnam dispute, the fact that ASEAN is thoroughly divided and cowed by the PRC, or because the US is distracted by its Ukraine adventure and is not ready to get a China crisis on at this particular moment remains to be seen.

Judging by President Obama’s security agenda speech at West Point (where he briefly cited the South China Sea issue but coupled it with a call for the Senate to ratify UNCLOS in order to give the US more standing in the disputes), America is not drawing any red lines in the South China Sea just yet.

As Secretary of Defense Hagel was communicating US resolve at the Shangri La forum, the New York Times treated the world to an astounding backgrounder on the Obama administration’s attitude toward Asia.

But even as Mr. Hagel and the United States have adopted a public posture that backs Japan — and, to a lesser extent, the Philippines, Vietnam and any other country that finds itself at odds with China — some administration officials have privately expressed frustration that the countries are all engaged in a game of chicken that could lead to war.

 “None of those countries are helping matters,” a senior administration official said…

Even if President Obama is suffering from lame duck fatigue and is disgusted with the hand that Hillary Clinton and her pivot dealt him in Asia, it seems counterintuitive that the United States will give a green light to the PRC in its South China Sea dispute with Vietnam.

If the U.S. isn’t ready to throw its weight around on behalf of its buddies, right, wrong, or nuance be damned, then the value of the U.S. deterrent and the pivot are significantly devalued.

Furthermore, Secretary of State John Kerry is the godfather of U.S.-Vietnamese rapprochement and I find it difficult to believe he—or his ally on the matter, John McCain--will let Vietnam take a whipping from China without some kind of riposte. 

The hope that the US cavalry will ride to the rescue, despite its current ambivalence, is probably one of the factors that is keeping Vietnam from sitting down with the PRC for the bilateral talks that Beijing is insisting upon.

But for the time being, the PRC seems to be cautiously enhancing its legal position—and relying on the expectation that the world will get tired of Vietnamese intransigence before it becomes sufficiently outraged by Chinese assertiveness—to gain further acceptance of its interests and rights in the South China Sea.