“Paramilitarizing” the SCS: A Bad Idea Whose Time Has Come?

In this piece I misidentified Carlyle Thayer as "Carleton Thayer".  I regret the error. CH 8/18/14

Usually, my predictions don’t pan out so quickly.

On August 11, I looked at the implications of a statement by US Senator Sheldon Whitehouse in Vietnam that used a striking reinterpretation of the global stake in maritime EEZs or Exclusive Economic Zones to justify escalated US activity in the South China Sea.

The Senator’s gambit apparently drew on the US conclusion that efforts to deter PRC salami slicing in the SCS have failed and it is time for a more aggressive and, I might add, extremely novel doctrine to justify a more forward US posture:

Quote:

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.


…
[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 … 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.

Endquote

Now Carlton Thayer, a doyen of Asian maritime disputes, has weighed in with his proposal for the “paramilitarization” of South China Sea frictions, “fleshing out”, as he puts it, a bare bones idea by retired US diplomat David Brown (I am assuming the David Brown in question is this gentleman at Johns Hopkins, who previously served in a variety of high-level diplomatic and academic Asia-related capacities).

Dr. Thayer, it can be said, is a friendly interlocutor to the Philippines and in particular to the aggressive anti-PRC strategy of its Foreign Minister, Alberto Del Rosario.  In 2012, when Del Rosario heatedly confronted Cambodia and other ASEAN nations disinclined to make an issue of the China’s outrages in the South China Sea in a closed ASEAN meeting, it was Dr. Thayer who was able to reveal confidential details to the world, including Del Rosario’s dramatic use of the Nazi analogy (“First they came for the… etc.”) to decry the passivity of ASEAN with respect to the plight of the Philippines over Chinese bullying at the Scarborough Shoal.

My personal feeling is that in 2014 the PRC hoped to use the HYSY 981 drilling rig gambit to trade Vietnam’s acknowledgment of Chinese sovereignty of the Paracels for PRC’s shift away from the nine-dash-line to an UNCLOS/EEZ linked formulation for bilateral settlement of maritime disputes.

Well, that didn’t happen.  Both Vietnam and the Philippines are leaning on the idea of some combination of ASEAN, regional, + US pushback to level the playing field with the PRC.  The PRC, for its part, seems be backpedaling on its hints of abandoning the nine-dash-line and it’s more likely that China will meet the expected repudiation of the nine-dash-line by the UNCLOS Arbitration Commission with resolute defiance…and ASEAN will probably let it slide, to the detriment, especially, of the Philippine government’s attempt to sideline the PRC and wrest energy riches from the seabed near the contested waters of Reed Bank.

Judging by Senator Whitehouse’ statement and Mr. Brown and Dr. Thayer’s proposals, it seems that hardliners in the US foreign policy apparatus, perhaps gazing longingly beyond President Obama and his sea of troubles to a more militant Hillary Clinton administration, feel there’s an app for this: “paramilitarization”.  

As Dr. Thayer describes it:

In present circumstances a formal track one trilateral arrangement should be negotiated and serve as a venue for working out a multilateral strategy to deter China. Such a strategy should embrace Vietnam, the Philippines, Japan and the United States and involve stepped up cooperation among their coast guards. Japan has already reached out to the Philippines and Vietnam.

The United States and Vietnam should expedite the agreement for cooperation between their Coast Guards. So far the training has taken place on land in the form of short courses. The U.S. Coast Guard should be deployed to Vietnamese waters for joint training and involve the exchange of observers on each other’s ships. Vietnam recently joined the Proliferation Security Initiative. This provides an opportunity for the United States to assist Vietnam further develop its capacity for maritime domain awareness.

…

In addition, U.S. Navy maritime surveillance aircraft based in the Philippines under the recent agreement on enhanced defense cooperation, could be deployed to Vietnam on a temporary basis. They could conduct joint maritime surveillance missions with their Vietnamese counterparts. U.S. military personnel could fly on Vietnamese reconnaissance planes as observers, and vice versa.

Regional security analysts expect China to mount aggressive naval displays in the South China Sea every year from May to August moving forward. This provides an opportunity for the United States and Japan to organize a series of continuing maritime exercises and surveillance flights with Vietnam and the Philippines just prior to the arrival of Chinese forces and throughout the period from April to August each year. The details of all operations should be completely transparent to all regional states including China.

An indirect strategy provides the means for the United States to give practical expression to its declaratory policy of opposing intimidation and coercion to settle territorial disputes. An indirect strategy does not require the United States to directly confront China. This strategy puts the onus on China to decide the risk of confronting mixed formations of naval vessels and aircraft involving the United States, Japan, the Philippines and Vietnam.

These combined maritime and air forces would operate in international waters and airspace that transverse China’s nine-dash line. The objective would be to maintain a continuous naval and air presence to deter China from using intimidation and coercion against Vietnam and the Philippines. Deterrence could be promoted by interchanging the naval and aircrews in all exercises. The scope and intensity of these exercises could be altered in response to the level of tensions.

For those of you keeping score, PRC maritime surveillance vessels, charged with dealings outside the 12 nautical mile territorial waters, are currently not externally armed, in keeping with the PRC’s “non-militarized” strategy, a state of affairs I suspect the US finds alluring but at the same time, because it undercuts the narrative of the armed Chinese menace, somewhat frustrating.  US Coast Guard cutters carry a variety of cannon & other armament.

The “paramilitarization” proposal is, to me, wrong on many levels.  I address the rather shaky legal basis for third parties to insert themselves in bilateral EEZ disputes in my original post.

There is, of course, the additional problem that the United States originally hung its “pivot to Asia” on “the US interest in freedom of navigation in the South China Seas” and the “Whitehouse doctrine” could be uncharitably described as “impeding freedom of navigation by people we don’t like in the South China Seas to advance a US agenda”.  But sweeping aside these minor hypocrisies is a matter of “kiss my hand” ease for the experienced US diplomatic and media apparatus, and need not detain us.

The real proof of the pudding will come if and when a Chinese maritime surveillance vessel either a) collides with, b) rams, or c) is, while engaged in a) or b) shot to pieces by a US coast guard or naval vessel while attempting to execute its self-defined responsibilities inside China’s self-defined non-territorial waters that also happen to be around a flotilla-infested Philippine or Vietnam-sanctioned oil rig.

Then the President of the United States gets to decide if he or she wants a collapse of diplomatic relations with the People’s Republic of China and a full-bore economic/sanctions war, kick the PRC to the curb in order to double down on the Philippines and Vietnam as America’s most important relationships in Asia, and for that matter, explain to the US public it is a matter of pressing national interest for the USCG to play chicken of the sea with Chinese ships thousands of miles from home for the sake of a Philippine or Vietnamese hydrocarbon play.

That’s a prospect from which even a President Clinton, architect of the pivot to Asia and godmother of mischief in the South China Sea, might quail.

The comforting assumption behind ”paramilitarization” is an old chestnut: that it’s really low cost/low risk because the PRC is fully aware of US military superiority, and will inevitably back down if faced with the potential for a direct confrontation with the US military or “paramilitary” forces.

As Mr. Brown put it (for the record, his proposal, unlike Dr. Thayer’s, restricted itself to the employment of US and regional coast guard vessels*):

For public consumption, these exercises can focus on hands-on training in search and rescue, interdiction of smugglers or pirates, defending against foreign incursions into territorial waters, etc. The United States and Japan should urge Australia, India, Indonesia, Malaysia, and Singapore also to join in these exercises.

Elements of the flotilla should remain at sea from March through July, ready to stymie another Chinese deployment simply by getting in the way. Such a concerted show of paramilitary strength would demonstrate that the littoral nations and their friends will no longer tolerate China’s salami-slicing tactics. There is a downside risk of deliberate collisions and the use of water cannons, tactics employed by China against Vietnam this summer. However, the more likely scenario is that Chinese vessels will choose to avoid confrontation on equal or near-equal terms, in effect resetting Chinese tactical assumptions and opening the way for more rational and mutually respectful outcomes.

But this ain’t 1997 or even 2009.  Through the state media and, I would expect, in private discussions, the PRC has stated repeatedly and unambiguously that it does not allow the United States any legitimate role to define or enforce maritime policy in the South China Sea.  The HYSY 981 escapade was merely the word made flesh, the icing on the cake, the steel middle finger, so to speak.

In 2014, it will take a war for China to acknowledge US dominion over the South China Sea.  And that’s a war, in my opinion—and I suspect, in China’s opinion—the United States is not prepared to fight.

*It would seem rather counterintuitive to place the South China Sea in the US Coast Guard scope of responsibilities.  However, the Coast Guard goes where the Commander-in-Chief says it should go. My father enlisted in the Coast Guard in World War II with the expectation his command would be harassing U-boats off the Atlantic Coast and instead found himself seconded to the US invasion effort and landing troops in North Africa, Italy, and at Normandy on D-Day; so the USCG does sometimes wander rather far afield, most recently to the Persian Gulf to support the Iraq wars.

ISIS Tentacles Reach Toward China

It’s been reported on the always-reliable Twitter by a Pakistan journalist, Ali Kamran Chishti, that Abdul Maulana Aziz has declared his support for the “Caliphate of Abu Bakar Baghdadi” i.e. ISIS.  “Video to be uploaded soon”.

If confirmed, this is potentially big and bad news for the People’s Republic of China.

Abdul Maulana Aziz was the radical spiritual leader of Lal Masjid, the Red Mosque, in downtown Islamabad.

In 2007, after a prolonged and desultory siege, Pakistan armed forces stormed the mosque, signaling a partial fracture of the de facto alliance between the Pakistan deep state and radical Islam.

The confrontation was little noted in the West, but it was big news in the People’s Republic of China.

Followers of the Red Mosque had targeted Chinese sex workers as part of a purification campaign; Uighur students—“terrorists” according to the PRC--were reportedly ensconced at the mosque; and, as the as the siege muddled slowly on its initial stages, radical Islamists retaliated against Chinese in other parts of the country.

In response the PRC, which at that time relied largely upon the good offices of its local allies and assets to keep a lid on Uighur extremism, demanded action.  Pervez Musharraf, torn between his military/intelligence and Chinese constituencies, obliged the PRC by sending troops personally loyal to him to storm the mosque in a bloody, catastrophic attack that probably claimed hundreds of lives.

Aziz had previously attempted to escape the siege by disguising himself in a burka, but was captured and paraded before the cameras in a humiliating fashion.  His brother died in the assault.

Maulana Aziz was released on bail in 2009 and spoke to an adoring throng.  The Guardian described the scene:

The 2007 siege had been a necessary sacrifice, he told them. "Hundreds were killed, many were injured. But today the whole country is resounding with cries to implement Islamic law. We will continue with the struggle.

"Now Islam will not remain confined to Swat. It will spread all over Pakistan, then all over the world."

Standing beside him was a senior leader from Sipa-e-Sahaba, a banned sectarian group that kills Shias, and which has close ties to the Red mosque.

In 2013, in another murky episode of Pakistan jurisprudence, the over two dozen legal cases against Maulana Aziz all evaporated without any serious government challenge.

Judging by Maulana Aziz’s subsequent re-emergence as member of the Pakistani Taliban’s negotiation team, one can assume his ties to the ISI intelligence services remain strong, and he was cut loose with the hope that he would smooth the way in peace talks between the TTP and the Pakistani government.   

The TTP talks don't seem to be going anywhere, which is bad news for the PRC.

The TTP is reportedly a willing host to Uzbek and Uighur fighters, and does not adhere to the basically hands-off strategy toward the PRC followed by many Islamic militants in the region (China’s links to militants run long and deep, thanks to its central role in funneling hundreds of millions of dollars of materiel to the mujihadeen on the CIA’s behalf during the anti-Soviet struggle in Afghanistan). 

Maulana Aziz is apparently residing in Islamabad, so it remains to be seen what caveats or qualifications he places upon his ISIS allegiance in order to dodge legal jeopardy--and if he and the ISI (Pakistan's Inter Services Intelligence) will encourage forbearance in the matter of enabling the training and infiltration of Uighur radicals back into Xinjiang.

Best case for PRC, the bond holds despite Maulana Aziz's presumably deep resentment against the PRC for its role in the siege and the death of his brother, and his apparent sympathy for the extreme Sunni/sharia stance of ISIS.

Worst case, the ISI exploits radical forces and exacts a terrorist price tag in Xinjiang for PRC attempts to balance its support for Pakistan with its desire to strengthen ties with India, in a recapitulation of the bloody anti-diplomacy inflicted on Mumbai by Pakistan terror assets in 2008.

But in any case, the awareness that the dots are slowly but surely getting connected from ISIS to the TTP and onward to Xinjiang will shadow Beijing’s thoughts, its Uighur security policy, and its diplomacy with Pakistan, the Afghan Taliban, and its interlocutors among Islamic radicals in Pakistan’s borderlands.

Below is an excerpt from a piece I wrote in 2007 on the siege, and the important role that the PRC played.

In the Shadow of Lal Masjid (excerpt)

The provocative kidnapping of 7 PRC nationals compelled Musharraf—reportedly under heavy Chinese pressure—to abandon a policy of appeasement and compromise with Islamic militants at the Lal Masjid mosque in Islamabad and, in July of this year [2007], launch a bloody assault that revealed the extent of the security crisis at the heart of the Pakistani military regime and displayed to the U.S. Musharraf’s—and Pakistan’s--wholehearted reliance on China.

In the speech announcing the state of emergency, Musharraf broke into English to tell us what he hoped we wanted to hear, evoking Lincoln as he tried to justify his move to the United States, the EU, and the Commonwealth as a response to judicial activism.

On the other hand, in his remarks in Urdu directed to the local audience as translated by Barnett Rubin , Musharraf cited the Lal Masjid mosque crisis--not the pursuit of al Qaeda and its allies in the border regions--as the primary instance of terrorism and extremism afflicting Pakistan.

And when he commiserated with the victims of terrorism, he took the opportunity to give a heartfelt shout-out to the Chinese, not to the United States:

Now. We saw the event of Lal Masjid in Islamabad where extremists took law into their own hands. In the heart of Pakistan - capital city - and to the great embarrassment of the nation around the world... These people - what didn't they do? - these extremists. They martyred police. They took police hostage. They burned shops. The Chinese, who are such great friends of ours - they took the Chinese hostage and tortured them. Because of this, I was personally embarrassed. I had to go apologize to the Chinese leaders, "I am ashamed that you are such great friends and this happened to you".

Now, about the standoff at the mosque.

One could describe it as Pakistan’s Waco—if Waco had taken place in the heart of Washington, D.C.

It didn’t get the attention it deserved. As the Times of India dryly observed of the attack that claimed at least 100 and perhaps 1000 lives:

...the week-long stand-off that ended in a massacre on Tuesday attracted little attention in the US, where focus is more on the debate over a pullout from Iraq. In fact, a news channel on Tuesday cut into a story on Lal Masjid to bring breaking news of a small airplane crash in Florida.


Lal Masjid was controlled by militant clerics who not only proclaimed their interpretation of sharia law—they enforced it.

An otherwise sympathetic observer declared:

One cannot have any objection to the Lal Masjid just preaching implementation of Sharia in Pakistan. So many organizations are doing so, one more cannot be objected to. The right of any Muslim to preach adoption of Sharia is one thing but to take the powers of implementing his own version of Sharia is another, and the latter is a function of the State.
...
Lal Masjid stands in revolt when it establishes its own Sharia courts, it passes judgments, and imprisons Pakistanis and foreigners.
 

Musharraf’s administration had its hands full with the militant, confrontational, and well-connected (to the intelligence services) cleric who ran the mosque, Maulana Abdul Aziz.

The difficulties involved can be seen from this excerpt from a timeline of the mosque crisis compiled by B. Raman, an Indian China-watcher who is assiduous in washing Pakistan’s dirty linen on the site Intellibriefs:

January 22, 2007: Female students of the Jamia Hafsa madrasa attached to the Lal Masjid in Islamabad occupied a Children’s Library adjacent to their madrasa to protest against the demolition of seven unauthorised mosques constructed on roads in Islamabad by which President Pervez Musharraf often travels. The mosques were demolished on the advice of his personal security staff.

February 13, 2007: The authorities agreed to rebuild one of the demolished mosques to end the library standoff, but the students refused to vacate the library.

March 27, 2007: The female students, along with their male colleagues from the Jamia Faridia, another madrasa attached to the mosque, raided a house near the mosque and kidnapped a woman, her daughter-in-law and her six-month-old granddaughter for allegedly running a brothel. They were released after they “repented”.

March 28, 2007: Some students of the two madrasas took three policemen hostage in retaliation for the arrest of some students by the police. The hostages were released on March 29.

March 30, 2007: Some madrasa students visited CD and video shops in the capital and warned the shop owners that they should either switch to another business or face the “consequences”.

April 6, 2007: The Lal Masjid set up its own Sharia court. The mosque’s chief cleric, Abdul Aziz, warned of “thousands of suicide attacks” if the Government tried to shut it down.

April 9, 2007: The Sharia court issued a fatwa condemning the then Tourism Minister Nilofar Bakhtiar after newspapers pictured her hugging her parachuting instructor in France.

You get the picture. Escalating confrontation, with the government conciliating, accommodating, and backing down.

After exposing the skydiving outrage, the students of Lal Masjid turned their attention to another font of impurity—a Chinese-run massage parlor in Islamabad.

The epic was reported in great detail in Pakistan Today:

First, the abduction:

Male and female students of Jamia Faridia, Jamia Hafsa and Beaconhouse School System, in a joint operation, kidnapped the Chinese women and Pakistani men shortly after midnight Friday from a Chinese massage centre, working at House No 17, Street 4, F-8/3, alleging that they were running a brothel. ...
...

Riding in three vehicles, the students ... raided the massage centre located in the posh Islamabad sector. They overpowered three Pakistani males and guards posted there after thrashing them.

They, later, entered the building and ordered those present there to accompany them. On refusal, the students thrashed them and forcibly took them to the Jamia Hafsa compound. They accused the abducted people of rendering un-Islamic and unlawful services.
...

Ghazi [of Lal Masjid] said the China massage centre was involved in sex trade and complaints were being received about it since long. "Even housewives used to tell us by phone that the centre charges Rs 1,000 for massage while by paying Rs 500, something else was also available," he said.

Then the anxious confab with the Chinese:

President Pervez Musharraf and Prime Minister Shaukat Aziz were earlier given minute-by-minute reports of the negotiations regarding the release of the hostages. ... The prime minister was in contact with the Islamabad administration and the Interior Ministry and getting minute-by-minute reports from State Minister for Interior Zafar Warriach.
...
The Chinese ambassador contacted President Hu Jintao two times during the 15-hour hostage drama, sources said. The ambassador called his president while holding talks with Pakistan Muslim League chief Chaudhry Shujaat Hussain at his residence.

... Sources quoted President Hu Jintao, expressing shock over the kidnapping of the Chinese nationals, has called for security for them. The ambassador informed his president about his talks with Prime Minister Shaukat Aziz and Chaudhry Shujaat Hussain. The PML leader also got telephonic contact established between the hostages and the ambassador.

The ignominious conclusion:

The release came only after Deputy Commissioner Chaudhry Muhammad Ali and Senior Superintendent of Police (SSP) Zafar Iqbal, who held talks with the Lal Masjid administration, beseeched it for five hours and even touched the knees of some leading clerics while begging for the freedom of the abductees.

Finally, the tellingly sleazy detail:

The administration quietly let two "big shots", Pakistani customers, go and released their vehicles, seized from outside the massage centre... The identity of these clients is not being disclosed.


Beyond President Hu Jintao’s tender regard for the security and livelihood of Chinese masseuses, there was obviously a larger issue at stake. China did not want to see its citizens and interests to become pawns in Pakistan’s internal strife.

It's a non-trivial point for China, which lacks the military reach to effectively protect its overseas citizens itself, but does not want to see them turned into the bargaining chip of first resort for dissidents in dangerous lands like Pakistan, Sudan, Nigeria, and etc. who are looking to get some leverage on the local government--or Beijing.

It looks like China demanded that Pakistan draw a red line at the abduction, extortion, and murder of its citizens.

A week after the kidnapping incident, Pakistan’s Federal Interior Minister was in Beijing.

Once more from the Intellibriefs timeline:

June 29, 2007: The "Daily Times" of Lahore wrote in an editorial as follows: "During his visit to Beijing, Sherpao got an earful from the Chinese Minister of Public Security, Zhou Yongkang, who asked Pakistan for the umpteenth time to protect Chinese nationals working in Pakistan. The reference was to the assault and kidnapping of Chinese citizens in Islamabad by the Lal Masjid vigilantes. The Chinese Minister called the Lal Masjid mob “terrorists” who targeted the Chinese, and asked Pakistan to punish the “criminals”.

One factor that would have intensified Chinese alarm and exasperation was a report that the attack on the massage parlor revealed a tie-up between Pakistan’s Islamic militants and Uighur separatists:

Mr.Sherpao also reported that the Chinese suspected that the raid on the massage parlour was conducted by some Uighur students studying in the Lal Masjid madrasa and that the Chinese apprehended that Uighur "terrorists" based in Pakistan might pose a threat to the security of next year's Olympics in Beijing.

In early July Musharraf apparently was able to invoke China’s anger to overcome resistance within his armed forces, and move against Lal Masjid.

Even so, he was forced to employ troops personally loyal to him, as the Weekly Standard reported:

China applied enormous pressure to Musharraf. His previous attempts to order military strikes against the Lal Masjid had met with rebuffs. In late January, after the Pakistani army refused to raid the mosque, Musharraf ordered his air force to do so--only to see this order refused as well. Musharraf's eventual solution was to send in 111 Brigade, which is personally loyal to him.


The mosque was encircled by 15,000 troops and the siege proceeded in a dilatory fashion...until three Chinese were murdered in remote Peshawar, apparently in retaliation for the siege.

China Daily reported:

Police officer Abdul Karim said that it was a robbery attempt.

But one witness said that attackers with face covered were shouting religious slogans when they opened fire on four Chinese nationals in a three-wheel auto-rickshaw factory at Khazana, a town some eight kilometers from Peshawar, the capital city of Pakistan's North West Frontier Province.

The Chinese outlets splashed the story all over the media, including their embassy websites, complete with atrocity photos—a treatment that the unfortunate demise of rickshaw factory employees doesn’t usually attract.

Tarique Niazi describes the denouement:

On July 2, barely a week after the abduction, the government ordered 15,000 troops around the mosque compound to flush out the militants. On July 4, it arrested the leader of the militants, Maulana Abdul Aziz ... After apprehending the leader, government troops moved to choking off the militants’ supplies of food, water, and power. But as soon as word of the revenge killing of three Chinese on July 8 reached Islamabad, it created a “perfect storm” for Gen. Musharraf. Embarrassed and enraged, he reversed the troops’ strategy and ordered them, on July 10, to mount an all-out assault at the mosque, in which Aziz’s brother and his deputy, Abdul Rashid Ghazi, together with as many as 1,000 people, was killed.

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:

Quote:

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.

Endquote

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 ADMINISTRATION OFFICIAL: Right.
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:

VOA: US Presents ASEAN Meeting as Setback for China 

Bloomberg: China Thwarts US Bid to Reduce South China Sea Tensions 

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.

Ouch.

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.