Saturday, May 31, 2014
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.
Wednesday, May 28, 2014
I was rather beguiled at first by President Obama’s commencement speech at West Point.
Not just because everybody else dumped all over it, and I wanted to exercise my contrarian’s prerogative to defend the indefensible.
It’s because the central premise—what I call the Obama Doctrine—is rather attractive to me:
Here’s my bottom line: America must always lead on the world stage. If we don’t, no one else will. The military that you have joined is, and always will be, the backbone of that leadership. But U.S. military action cannot be the only -- or even primary -- component of our leadership in every instance. Just because we have the best hammer does not mean that every problem is a nail.
President Obama’s unwillingness to employ military action against Syria or in the Ukraine is, I think, a reflection of his bedrock principle, his aversion to committing US military power unless it is absolutely necessary, a conviction that he has maintained at some cost against determined pushback by hawks within his administration, in Washington, and internationally. No more Vietnams or Iraqs.
Good for him.
Unfortunately, the flip side of the Obama doctrine is that the United States remains committed to a forward counterterrorism posture and US“leadership” i.e. the ability to shape events overseas even without using military power.
Even when holding back on military power, there are plenty of ways for the United States to cripple a designated adversary. There’s economic sanctions; financial warfare through the international banking, economic, and trade system; there’s subversion, through the Internet, through support of dissident parties and insurrectionists; there’s proxy wars. There’s JSOC. And of course, there’s drones.
And the most terrifying of all, the non-stop yammering of neo-liberal pundits advocating and excusing the latest US exercise in humanitarian intervention.
In other words, the United States still reserves the right to cruelly and counterproductively f*ck up any country with any and all means short of the direct commitment of US military forces.
That means plenty more Syrias.
Even if the Assad regime assiduously astro-turfed the massive turnout of refuge Syrians to vote at the Syrian embassy in Lebanon, I found it sad, moving, and pathetic that these people who had been driven from their homes were trying to show the world that they desperately wanted to live in a safer place where that election mattered…and at the exact same time the Obama administration was discussing plans to funnel more support to the insurgents in order to forestall their military defeat and a political settlement on terms that the United States deems undesirable.
From an ethical point of view, is it a better, more humane policy to eviscerate a country slowly through sadistic proxies than simply to send in the troops and brutalize the locals briskly and efficiently and with some hope of genuine international oversight?
Looking at Syria, I don’t think so.
As a practical matter, I’m afraid the Obama Doctrine won’t fly as a matter of realist geopolitic.
Taking the possibility of US military action off the table in the case of lower-priority objectives undercuts the deterrent character of the US military machine.
I expect that the People’s Republic of China was interested and relieved at President Obama’s speech and its implications for the PRC’s aggressive moves in the South China Sea.
President Obama had a lot to say about “counterterrorism” and very little to say about “salami slicing” by a certain regional power.
He did obliquely compare China’s moves in the SCS to alleged Russian activity in Ukraine:
Regional aggression that goes unchecked, whether in southern Ukraine or the South China Sea or anywhere else in the world, will ultimately impact our allies, and could draw in our military.
We can’t try to resolve problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is ratified by the United States Senate…
In other words, I’m not doing sh*t in the South China Sea? Blame the Senate.
If that remains the full extent of President Obama’s succor to Vietnam and the Philippines in their attempts to check the onslaught of HYSY 981 a.k.a. Rigzilla a.k.a. the PRC’s intrusive, EEZ occupying drilling rig and its sizable flotilla of ships, there are going to be some long faces in Hanoi and Manila.
Perhaps President Obama has decided that it will take some time to work up a systemic riposte to the PRC in the South China Sea, and he’s not going to rush ahead with some half-assed measure that “reassures” our allies + Vietnam, but risks being exposed by the PRC as another unenforceable “red line”.
It may be that President Obama has decided that if he can extract most US troops from Iraq and Afghanistan, that’s enough foreign policy legacy for his presidency and he doesn’t need to add a China war. So he’s kicking the can down the road to the next administration.
The fully-formed China plan will, I think, come from a Hillary Clinton presidency. The pivot is her baby, and she has convinced herself and her army of eager advisers that the key to US success in Asia is an aggressive China-containment policy underpinned by the idea of a credible US deterrent to undesirable PRC actions.
Well, judging by the PRC’s calculated defiance in the South China Sea, it might take more than US signing on the UNCLOS and pushing for the ASEAN Code of Conduct to deter the dragon.
So I don’t think President Clinton will be happy with the “Obama Doctrine” and the way it takes US military action off the table in non-existential situations.
A Hillary Clinton presidency might, I suggest, resurrect the Nixon “madman” posture, by which Nixon used the threat of extreme, non-proportionate force to try to get North Vietnam to forget that he had already committed to withdraw US troops and all they had to do was wait him out.
In her America’s Pacific Century essay, Clinton carefully laid the foundations for a US military role in Asian maritime disputes through the Asian maritime security = US economic security = US national security argument.
Maybe a “Hillary Clinton Doctrine” will look like “The United States will use all measures up to and including military force to ensure its economic and national security”. We’ll see.
As Bob and Barbara Dreyfuss point out at The Nation, Hillary is a bottom-line hawk, and she wants all her coercive resources available for any situation:
[T]he Times adds that, after countless interviews, it is clear that Clinton was the administration’s hawk:
But in recent interviews, two dozen current and former administration officials, foreign diplomats, friends and outside analysts described Mrs. Clinton as almost always the advocate of the most aggressive actions considered by Mr. Obama’s national security team—and not just in well-documented cases, like the debate over how many additional American troops to send to Afghanistan or the NATO airstrikes in Libya.
Mrs. Clinton’s advocates—a swelling number in Washington, where people are already looking to the next administration—are quick to cite other cases in which she took more hawkish positions than the White House: arguing for funneling weapons to Syrian rebels and for leaving more troops behind in postwar Iraq, and criticizing the results of a 2011 parliamentary election in Russia.And the Times quotes Dennis Ross, the pro-Israel advocate who worked for both Clinton and for the White House on Iran: “It’s not that she’s quick to use force, but her basic instincts are governed more by the uses of hard power.”
Either way, Obama or Clinton, it looks like American foreign policy will remain a meatgrinder for its enemies for the foreseeable future.
Photo by Joseph Eid, AFP
Monday, May 26, 2014
The People’s Republic of China decided to defy the “pivot to Asia” by parking its HYSY 981 drilling platform—protected by a flotilla of various vessels perhaps not including PLAN ships-- in waters that Vietnam considers part of its EEZ.
Vietnam has been displeased, to put it mildly. It has reached out to the Philippines, indicating that it may support Manila’s legal challenge to the nine-dash-line or perhaps institute a legal case of its own.
A Vietnamese deputy prime minister is also visiting Washington DC at US Secretary of State John Kerry's invitation, apparently to provide optics for an expected US congressional resolution condemning PRC activities in the South China Sea. The visit also raises the specter (for the PRC) of a US return to Cam Ranh Bay, the massive US-built naval base on the southish Vietnamese coast.
Many Western observers believe that the PRC has blundered into the pivot’s clever trap, and its aggressive moves are simply driving its neighbors into the welcoming arms of the United States, enabling a more forward military presence for the US around China’s borders, and justifying US claims to a central role in the region as security guarantor.
I suspect, however, that the PRC has gamed this out and is willing to roll the dice in the South China Sea.
The long-term view from Beijing, I think, is that China occupies enough islands to move beyond the hard to defend “cow tongue” claim to a more defensible island sovereignty + EEZ formula for pursuing its interests in the SCS; China’s growing economic and military heft, its ability to limit the terms of dispute to economic terms, the unresolved issues of EEZ ambiguity, definition, and enforcement, and the PRC’s unwillingness to budge from its positions will force its neighbors to come to terms, albeit reluctantly and resentfully, over the long haul.
East China Sea is a different matter.
On the issue of the Senkakus, the “possession is 9/10s of the law” shoe is on Japan’s foot. Furthermore, the islands are unambiguously included in the scope of the US-Japan security treaty thanks to President Obama’s statement during his recent pivot tour to Asia (even though the US doesn’t recognize Japanese sovereignty over the islands; that’s another story), and Japan’s military infrastructure and capabilities to defend them are increasing. Assuming that Prime Minister Abe is able to thread the needle through the Japanese constitution and past the suspicious Japanese public and institute “collective self defense”, Japanese military power will be augmented by its ability to engage in “defensive” military activity while conducting joint operations with the US.
I read the red tea leaves and believe that the PRC does not have a realistic expectation of seizing the Senkakus or otherwise changing the status quo vis a vis Japan over the islands. I wouldn’t be surprised if the PRC has few serious intentions of occupying the Senkakus and foments tension simply as a “pricetag” retaliation for Japan’s increasingly overt and aggressive anti-PRC foreign policy.
With the PRC deterred from making a genuine move against the Senkakus, the dominant dynamic in the East China Sea will be of Japan trying to achieve unity of doctrine and response with the United States for a contain-China policy, while the PRC will be trying to wedge US and Japan.
The process plays out with Japan’s invocation of “gray zone crises” i.e. friction with the PRC manifested in non-military ways. Japan is trying to establish a definition of gray zone conflicts that permits a military response to a non-military scenario such as the PRC's ceaseless salami-slicing, and thereby gets the United States on the hook to provide backup muscle for the Japanese move. I see this as Japan's desired quid pro quo for signing on to "collective self defense".
One scenario I saw involved “armed Chinese fishermen” i.e. the idea that the PRC might try to seize the Senkakus with some kind of irregular force that the coast guard couldn't handle, and would require an SDF response even though PLA forces nominally weren't involved. As the United States digests the Crimea annexation precedent, expect Japan to invoke this kind of scenario more frequently.
The United States, whose primary interest is to get Japan on the hook for US military adventures, not the other way around, is apparently resistant to nailing down the “gray zone conflict” definition and giving Japan a green light (or at least a blinking yellow) for pushing back on the PRC, especially in murky a.k.a. "gray" clashes between Japanese and PRC vessels on the high seas.
Indeed, the gray zone problem neatly crystallizes the whole problem of the pivot: that it creates a moral hazard (in Western terms) or emboldens US allies (the PRC formulation) to engage in reckless behavior not necessarily advantageous to US interests, specifically the US interest in not engaging in a scorched earth economic conflict with the PRC for the sake of some uninhabited rocks.
Failing a meeting of the minds on “gray zone” conflicts, Japan has to content itself with provocations against the PRC in the hope that a PRC over-reaction will compel the US to expand its de facto security guarantees to Japan.
I place the recent contretemps over the close-quarters flyby conducted by Chinese fighter jets against Japanese military surveillance aircraft in the area of the joint PRC-Russia naval exercise in the category of a provocation, committed with an awareness of growing US disgruntlement with the PRC as well as the Obama administration's need to explicitly stand with allies post-Crimea.
Western media has reliably regurgitated Japanese government spin that the flyby was some recklessly aggressive behavior by the PRC.
However, facts indicate that the Chinese military posted a no-fly/no sail notification concerning the naval exercise and Japan flew over there anyway.
The only justification that Japan can offer is that it refuses to recognize the PRC ADIZ over the East China Sea. In fact, the incident shows why it’s important to respect other countries’ declared ADIZs and in fact the reckless party in this episode was not the PRC, but Japan. In terms of unintended consequences, it may also feed into US concerns about the hazards of letting Japan take the initiative in butting heads with the PRC in the ECS and then demanding US backing.
Interestingly, the official Japanese position now seem to be limited to the “Chinese planes flew too darn close” bleating.
An as yet unnoted element of the ADIZ issue is that the United States is the only power that asserts the right to fly military aircraft through somebody else’s ADIZ without filing a flight plan (to refresh everybody’s memory, US-flagged civilian carriers respect the PRC ADIZ regs. But the US immediately flew two B-52s into the ADIZ unannounced to affirm the US military prerogative).
Now Japan seems to be asserting that same right for its military aircraft, at least within the PRC ADIZ, a “destabilizing” “status quo-changing” state of affairs, one that also places the Japanese military at parity with the United States on this issue. I wonder if the US is terribly happy about this but will have to suck it up since Japan is currently dangling the collective self defense and TPP carrots before it.
It would seem unlikely that the United States would take Japan under its wing, so to speak, and conduct joint military flight patrols within China’s ADIZ as a show of support, but the Obama administration’s red line manhood is being questioned worldwide post-Syria and post-Crimea. So it might happen.
And the PRC might just have to suck it up, consoling itself with the idea that getting its way in the South China Sea is adequate compensation for getting balked in the East China Sea.
At the back of everybody’s mind, I think, is the potential real crisis in East Asia: the possibility that Taiwan will declare de jure independence at some time, and the PRC will be compelled to put up or shut up on the relatively existential issue of losing Taiwan. That’s when military posturing, military threats, and military maneuvers become genuinely pressing issues.
In this context, I consider the most disturbing development in US-PRC relations is not the tussling over rocks in the South China Sea or the East China Sea; it is the decision to twist China’s nuts with the indictment of five PLA officers for hacking. I expect the US national security civilian apparatus considers the indictment one of those clever, legalistic soft power moves that, again, traps China in the web of law and international norms.
But the battle lines in Asia have hardened: pivot vs. China. The status quo is becoming confrontation, at least in regional security issues. With the expectation that US and PRC forces will be engaging and confronting each other, it would seem desirable that both sides have a better understanding of their opposite numbers. Indeed, the US Department of Defense has shown little enthusiasm for the White House's anti-hacking jihad which, in addition to clearing out the US government's stock of cyberrighteousness, seriously depreciated by the Snowden revelations, has scotched US-PRC military-to-military exchanges on ground rules for cyberwarfare.
Engagement with the PRC, for better or worse, has become a military matter. And if a clash occurs, it had better be because at least one side really wants it, and not because of the main abettors of military catastrophe: FUD or "Fear, Uncertainty, and Doubt."