Category: territorial disputes

U.S. Policy in the South China Sea

I recently published a short policy brief for the S. Rajaratnam School of International Studies at Singapore’s Nanyang Technological University that examines the evolution of U.S. policy toward the disputes in the South China Sea since 1995.

Here’s the executive summary:

U.S. policy toward the disputes in the South China Sea has four features. First, the United States has altered its policy in response to changes in the level of tensions in the dispute. Second, U.S. policy toward the South China Sea has been premised on the principle of maintaining neutrality regarding the conflicting claims to sovereignty. Third, as its involvement in managing tensions has increased, the United States has emphasised the process and principles by which claims should be pursued more than the final outcome or resolution of the underlying disputes, especially conflict management through the conclusion of a binding code of conduct between ASEAN and China. Fourth, U.S. policy in the South China Sea has sought to shape China’s behaviour in the South China Sea by highlighting the costs of coercion and the pursuit of claims that are inconsistent with customary international law. Looking forward, the involvement of the United States in seeking to manage tensions in the South China Sea is likely to continue so long as the territorial and maritime jurisdictional disputes remain unresolved and states take declaratory steps and operational actions to assert and defend their claims.

Read the full report here.

 

China, Japan, and the U.S.—Will Cooler Heads Prevail?

I joined the conversation over the Asia Society’s ChinaFile on tensions between the China, the United States and Japan.

Specifically, I addressed a question “will China attempt to take the Senkakus by force?”

Let me pick up on Isaac’s first question, “will China attempt to take the Senkakus by force?”

Iain Johnston and I recently analyzed data on the frequency of Chinese Coast Guard patrols within the twelve nautical mile territorial waters of the islands. Since September 2012, China has used these patrols to challenge Japan’s sovereignty and administration of these disputed rocks.

For the past six months, however, China has reduced significantly the frequency of patrols it conducts within the island’s territorial waters. Before October 2013, it conducted a patrol roughly once per week, on average. Since then, it has conducted a patrol once every two weeks. In sum, the rate of patrols has dropped by half—and is statistically significant.

The reduced frequency of these patrols is noteworthy for several reasons. First, as Iain and I suggested, China may be signaling limits on its willingness to escalate, at least for now. Second, by reducing the number of patrols, China is also reducing the opportunities for an accident or incident to occur between Chinese and Japanese ships. Such an event, especially if it involved fatalities, could spark a much more intense crisis and greater incentives to use force on both sides.

Turning to Isaac’s question, the reduction in the frequency of these patrols is inconsistent with an escalation of pressure that might culminate in a decision by China to use force. Instead, China appears to have adopted a long-term view of dispute that does not involve taking them by force. Last summer, for example, a meeting of prominent Chinese government analysts concluded that China should “avoid an incident that sparks a war” over the islands. They also assessed that the dispute would persist for a long time to come and that it was therefore urgent to reduce the possibility and risk of a collision at sea.

Finally, a broader point. If China seized islands by force, they would be nearly impossible to defend from a counter-attack, as Gen. John Wissler noted; Moreover, a counter-attack to retake the islands would risk a much wider war, which China as well as the United States and Japan want to avoid.China’s leaders have quite likely anticipated such a scenario, which explains the emphasis on a long-term effort to challenge Japan’s control of the islands and surrounding waters with its coast guard and not its naval forces.

Hainan’s New Fishing Rules: A Preliminary Analysis

Hainan’s provincial government has become an increasingly prominent and active player in the South China Sea disputes.  In November 2012, Hainan’s People’s Congress issued new regulations on coastal border security that raised questions about freedom for navigation in the South China Sea (see analysis hereand here).

In November 2013, the same legislative body issued “measures” (banfa, 办法) or rules for the province’s implementation of China’s 2004 fisheries law.  These new rules, which took effect on January 1, raise questions about China’s efforts to exercise jurisdiction over all fishing activities in the disputed South China Sea.

Current concerns focus on Article 35 of Hainan’s new fishing rules. This article states that “foreigners or foreign fishing ships entering sea areas administered by Hainan and engaged in fishery production or fishery resource surveys should receive approval from relevant departments of the State Council.” As the news reportannouncing the new rules indicated, the “sea areas administered by Hainan” constitute 2,000,000 square kilometers, more than half of the South China Sea. If implemented, the measures would constitute an effort to control fishing in the entire region in a manner that is clearly inconsistent with the UN Convention on the Law of the Sea (UNCLOS).

In assessing the potential implications of these measures for the disputes in the South China Sea, several points bear consideration.  All told, the new measures reflect part of a continuing effort to affirm and reaffirm China’s claims in the South China Sea, but are unlikely in the short to medium term to result in a sustained Chinese effort to control fishing in these vast waters.

To start, the new measures do not contain any new language regarding foreign fishing vessels in waters that China claims. In fact, the Hainan rules simply repeat almost verbatim Section Two, Article 8 of China’s 2004 fisheries law, which states that foreign fishing vessels operating in sea areas administered by China should receive approval from relevant State Council departments. That is, the new Hainan rules affirmed the application of the 2004 national law to Hainan’s waters (which were already covered by the 2004 law).  Importantly, the recent Hainan rules do not outline or articulate a new policy position regarding foreign fishing vessels in Chinese claimed waters.

In addition, the 2013 rules do not mark the first time that Hainan has sought to regulate the activities of foreign fishing vessels in its waters.  In previous editions of the implementing measures issued for China’s national fisheries law in 1993 and 1998, Hainan’s legislature also required that foreign fishing vessels receive permission to operate in the province’s waters.

Likewise, apart from Article 35, the other forty articles in the newly issued rules discuss rather mundane fishing issues and not the policing of Hainan’s waters. Various topics include fish-farming, fishing methods, the protection of fish stocks and so forth. One rule, for example, sets the minimum length for the catch of various species (e.g., 18 centimeters for lobsters). In other words, the main purpose of the implementing measures appears to be strengthening the regulation of fishing for an island province with a large fishing industry, not further bolstering China’s claims to fishing rights in the South China Sea.

Finally, the 2013 Hainan implementing measures do not state how the province intends to regulate the presence of foreign fishing vessels. Apart from stating that foreign fishing vessels must receive State Council approval to operate in Hainan’s waters, the measures do not discuss how the province will police foreign fishing vessels, including which agencies would be responsible for this mission or what rules of engagement would be used. The sheer size of the waters nominally under Hainan’s administration indicates that actual implementation of these new rules would be a daunting operational task, especially giving the various missions assigned to the newly-formed Chinese Coast Guard.

Any effort to implement these rules would also have to be balanced against China’s relations with other states adjacent to the South China Sea. In 2009, China aggressively policed foreign fishing vessels around the Paracel Islands, which are also claimed by Vietnam. In particular, China seized or detained 33 Vietnamese fishing boats with 433 Vietnamese fishermen. China’s assertive actions worsened ties with Vietnam, which subsequently improved after 2011. Clashes between the Chinese authorities and Vietnamese fishing vessels have declined significantly (though some still occur) and the two sides have established a hotline to deal with fisheries issues.

Looking forward, the reference to foreign fishing vessels in Hainan’s new fishing rules reflects a continued desire to affirm Chinese claims in the South China Sea and to do so in a way that is inconsistent with UNCLOS. Nevertheless, the key question is whether China is able – or even willing – to implement the new rules actively and aggressively throughout these waters.

[This originally appeared in The Diplomat.]

Xi Jinping and China’s Maritime Disputes

At the end of July, the Chinese Communist Party’s ruling Politburo held a special study session on the nation’s growing maritime power, which has helped cause controversy with several neighboring states. Official media reports about the meeting emphasized a speech by President Xi Jinping that repeated the main policy themes from the recent 18th Party Congress, calling for China to become a major maritime power by developing its maritime resources and protecting the ocean environment.

But Xi’s most interesting remarks have received scant attention. Under China’s system of collective leadership, speeches at Politburo meetings usually reflect the consensus of the participants – in this case, China’s top 25 leaders. Near the end of his address at the most recent study session, Xi discussed China’s ongoing maritime disputes and predictably repeated many now common talking points, such as “never giving up its legitimate rights and interests,” especially the nation’s core interests. Nevertheless, two other phrases he used may illuminate how Beijing may handle these disputes and therefore deserve greater attention. Xi’s remarks suggest that Beijing may be reconsidering the merits of its most assertive actions in the East and South China Seas—ones that have caused grave diplomatic problems with Japan and many Southeast Asian countries.

First, Xi repeated the late Deng Xiaoping’s 12-character guideline for dealing with territorial disputes over offshore islands such as the Spratlys and Senkaku/Diaoyu. In a series of statements between 1979 and 1984, Deng had outlined his more moderate approach, later summarized as “sovereignty remains ours; shelve disputes; pursue joint development.” In recent years, Chinese scholars and analysts have debated the merits of that approach, sometimes criticized for failing to prevent what have been perceived infringements of Chinese sovereignty. For example, just last year a prominent analyst at the China Contemporary Institutes of International Relations, Chen Xiangyang, called for a more assertive policy. In particular, he suggested that Deng’s guideline be replaced with a tougher approach: “sovereignty of course is ours; maintain the dispute stage; seize the initiative to pursue development; strengthen crisis management and control” (zhuquan dangran zaiwo, jieduanxing baochi zhengyi, zhuajin zizhu kaifa, qianghua weiji guangkong).

However, by repeating Deng’s 12-character guideline, Xi endorsed and affirmed Deng’s earlier position on behalf of the entire Politburo (including two of the People’s Liberation Army’s top generals, Fan Changlong and Xu Qiliang). By stating what the party line should be, Xi indirectly addressed the internal debate about Deng’s guideline. Of course, Deng did not offer a plan for resolving the underlying sovereignty disputes, but the Politburo’s affirmation of Deng’s approach indicates that Beijing will be patient, and pursue temporary measures to reduce tensions. It also undermines a growing belief overseas that China is becoming increasingly impatient at sea.

A few days later, Foreign Minister Wang Yi illustrated what Xi’s remarks could mean in reality. During a tour of Southeast Asia, Wang indicated that a final resolution could only be achieved through bilateral talks and would “take time,” while progress on a much-needed Code of Conduct for minimizing maritime problems could only be achieved without outside interference (read: the Philippine decision to seek international arbitration rather than direct diplomatic talks). Thus, Wang emphasized “actively” exploring joint development, though he failed to offer any specific details about how to do so.

Second, Xi said in his speech that China must “plan as a whole the two overall situations of maintaining stability and safeguarding rights” (yao tongchou weiwen  he weiyuan liangge daju), the first time such a phrase has been used by a top leader. This seemed to give equal importance to maintaining regional stability (weiwen) and safeguarding China’s “maritime rights and interests” (weiquan).

In past speeches by China’s top leaders, a reference to the “overall situation” (daju) typically described a primary national interest that Beijing should not allow to be harmed or undermined by specific state policies. In the 1990s, for example, speeches on military modernization asserted that increases in defense spending must be coordinated with the overall progress of economic reform – that is, spending should not increase at the expense of broader goals. More recently, in 2006, during a major speech on Chinese diplomacy, then-President Hu Jintao referred to the equal importance of managing the domestic and international overall situations (guonei, guowai, liangge daju). As Bonnie Glaser from the Center for International and Strategic Studies observed then, Hu’s statement reflected the judgment that Beijing’s domestic policy of urging enterprises to invest abroad had backfired by harming China’s image in the world.

In his speech to the Politburo, Xi thus highlighted the contradiction between China’s enhanced efforts to defend its claimed maritime rights and its desire for regional  stability. This matters for several reasons. First, it represents a recognition that Beijing’s maritime assertiveness has harmed its other interests, especially the role of other states in regional security affairs. Since 2010, for example, the United States has clarified its policy in the South China Sea, while deepening its alliance with Japan and underscoring its commitment to defend the disputed Senkaku/Diaoyu islands (which Japan administers) under Article V of their mutual defense treaty. Tokyo meanwhile has pursued greater maritime and security cooperation with Hanoi and Manila, among others, including by providing patrol boats.

Second, the stress on the need to balance these competing interests suggests limits to how either will be pursued going forward. On the one hand, China will not rule out reacting to perceived challenges simply to maintain regional stability. On the other hand, China’s defense of its maritime claims will also face hard constraints, lest they further worsen its position in the region. How these interests will be balanced may become apparent as a newly formed Chinese Coast Guard under a reorganized State Oceanic Administration shows how it plans to behave.

In sum, Xi’s remarks to the Politburo deserve special attention. They indicate China may not be as impatient about resolving the South China Sea disputes as some analysts have suggested. And they indicate China’s approach to these disputes may be more nuanced than expected by those who have labeled him as little more than a nationalist hardliner.

[This originally appeared in The Diplomat as “Xi Jinping’s Overlooked Revelation on China’s Maritime Disputes.”]

Hainan’s New Maritime Regulations: A Preliminary Analysis

Hainan’s People’s Congress recently approved new regulations for the management of public order for coastal and border defense.  Part of the regulations authorizes public security units to inspect, detain or expel foreign ships illegally entering waters under Hainan’s jurisdiction.  As a result,initial reporting and analysis indicated that the regulations may provide a basis for China to challenge freedom of navigation in the vast disputed waters of the South China Sea.

As the full-text of the regulations have not been published, such conclusions are, at the very least, premature.  Moreover, based on information that is currently available, the regulations will likely focus on the activities of foreign ships and personnel within Hainan’s 12 nautical mile territorial seas and along Hainan’s coast, including its islands.  The basis for this conclusion is analysis of a partial summary of the regulations that Xinhua published.

The regulations govern the activities of Hainan’s public security border defense units (gong’an bianfang jiguan).  This refers to China’s public security border defense troops, which are part of the People’s Armed Police but fall under the Ministry of Public Security and include the Maritime Police (haijing, also referred to as China’s Coast Guard).  These public security units are tasked with maintaining public order in China’s border and coastal areas, including port security and immigration.  However, they are not responsible for maintaining law and order within China’s Exclusive Economic Zones (EEZ) or any maritime zone beyond the 12 nautical mile territorial sea.  The China Marine Surveillance force under the State Oceanic Administration holds the primary responsibility for these duties along with the Maritime Safety Administration and Fisheries Law Enforcement Command.

The details of the Hainan regulations indicate that the conditions under which public security border defense units are authorized to engage foreign vessels is limited.  Here’s the key paragraph from Xinhua:

《条例》对外国船舶及其人员，进入海南管辖海域不得有违反沿海边防治安管理的行为进行了界定，包括：通过海南管辖领海海域时非法停船或者下锚，寻衅滋事；未经查验准许擅自出境入境或者未经批准擅自改变出境入境口岸；非法登上海南管辖岛屿；破坏海南管辖岛屿上的海防设施或者生产生活设施；实施侵犯国家主权或者危害国家安全的宣传活动和其他法律、法规规定违反沿海边防治安管理的行为。

The paragraph defines six actions that could warrant boarding or other interference with foreign vessels: 1) vessels that stop or anchor within the 12 nautical mile territorial sea (linghai) or “try to pick a quarrel,” 2) vessels that enter ports without approval or inspection, 3) the illegal landing on islands under the administration of Hainan, 4) the destruction of coastal defenses or production facilities on islands under the administration of Hainan, 5) violations of national sovereignty or propaganda activities that threaten national security, and 6) other actions that threaten the management of public order in coastal and border areas.

The only maritime zone mentioned specifically in the regulations is China’s 12 nautical mile territorial sea, where it enjoys more or less the equivalent of sovereign powers under the UN Convention on the Law of the Sea.  There is no specific reference to boarding foreign vessels in other zones such as the EEZ, though apparent language from the preamble refers broadly to “waters under Hainan’s administration” that could include areas in the South China Sea beyond 12 nautical miles.  Nevertheless, the actions outlined above are all concern with Chinese territory or territorial waters – not the much larger maritime areas that press accounts have suggested.  This is, moreover, consistent with the duties of the China’s public security border defense units that are the subject of the regulations.

The impact on disputed areas in the South China Sea is likely to be minimal in the short to medium-term.  In the regulations, the reference to the islands under Hainan’s administration indicates that they could be used to justify or rationalize the interference with the navigation of foreign vessels in territorial waters around islands and other features that China either occupies or claims in the South China Sea.  However,the Chinese navy and not public security border forces are responsible for the defense of the islands that China holds.   Whether public security units are granted a greater role in disputed areas is a key indicator to track.

In addition, Hainan is not the only Chinese province to pass new regulations governing public order in coastal and border areas.  Within the past week, Zhejiang and Hebei have also passed similar regulations.  Importantly, Hebei is not adjacent to any disputed maritime areas.  This suggests a broader effort among coastal provinces to strengthen the management of public order in border and coastal areas and not a specific focus on disputed areas, though the regulations are relevant as discussed above.

In sum, although the regulations establish a legal basis for Hainan’s public security border defense units to board or seize foreign vessels on or near disputed islands, they are unlikely to result in a major change in China’s behavior in the disputed waters of the South China Sea.  Policing China’s EEZ is the responsibility of the China Marine Surveillance and the Fisheries Law Enforcement Command, not public security units.  Nevertheless, given the applicability to disputed islands and adjacent territorial waters, China should clarify when and where these regulations apply.

[This originally appeared in The Diplomat.]

Redefining the Status Quo

The most striking feature of China’s behavior in its maritime disputes this year has been efforts to redefine the status quo.  In its disputes with the Philippines and Japan, China has used the presence of its civilian maritime law enforcement agencies to create new facts on the water to strengthen China’s sovereignty claims.

Before April 2012, neither China nor the Philippines maintained a permanent presence at Scarborough Shoal.  Fishermen from the Philippines, Vietnam, Taiwan and China operated in and around the large reef.  At times in the past, especially in the late 1990s and early 2000s, the Philippine navy had arrested Chinese fishermen who were inside the shoal.  Since then, Chinese patrols have sailed by the shoal, but no effort has been undertaken to exercise effective control over the shoal or its surrounding waters.

The situation changed following the standoff over sovereignty of Scarborough Shoal.  The standoff began in April 2012 when the Philippine navy prepared to arrest Chinese fishermen who were operating in the shoal’s lagoon.  After receiving a distress call, two China Marine Surveillance (CMS) vessels arrived on the scene, blocking the entrance to the lagoon and preventing the arrest of the Chinese fishermen.  After the fishing boats left the shoal, however, government ships from both sides remained to defend claims to sovereignty over the shoal.  By the end of May, China had deployed as many as seven CMS and Bureau of Fisheries Administration ships.

In early June, the Philippines announced that an agreement had been reached with China for a mutual withdrawal of ships.  Although China never publicly confirmed the existence of such an agreement, ships from both sides left in mid June as a typhoon approached the area.  Later, however, Chinese ships returned and appear have maintained a permanent presence in the waters around the shoal since then.  In mid July 2012, for example, an intrepid news crew from Al Jazeera videotaped an attempt to visit the shoal, only to be turned away by a combination of CMS and fisheries administration vessels.  China has also roped off the sole entrance to the lagoon inside the shoal to control access to it.

Before the standoff, China had no permanent presence at Scarborough Shoal.  Three months later, China had effective control of the shoal and the surrounding waters, thereby altering the status quo in this dispute in its favor.  As an editorial in the Global Times noted, China has “directly consolidated control” of the shoal.

A similar dynamic is underway in the East China Sea over the Senkaku / Diaoyu Islands.  Before the Japanese government’s purchase of three of the islets from a private citizen in September 2012, Chinese government ships had generally avoided entering the 12 nautical mile limit of Japan’s territorial waters around the islands.  As I wrote several years ago, China and Japan appeared to have a tacit agreement from the mid-2000s to limit the presence of ships and citizens near the islands in an effort to manage the potential for escalation.

In September 2010, the detention of a Chinese fishing captain whose boat had broached the 12 nautical mile limit and then rammed a Japanese Coast Guard ship sparked a crisis in China-Japan relations.  Part of China’s response included increasing the number of patrols by marine surveillance and fisheries vessels near the islands.  Most of the time, these boats remained beyond Japan’s 12 nautical mile territorial waters around the Senkakus or crossed this line only briefly.  China in practical terms continued to accept Japanese de facto control of the islands and their associated territorial waters (over which a state enjoys sovereignty rights under the UN Convention on the Law of the Sea).

After the purchase of the islands last month, however, China has abandoned this approach. China firstissued baselines to claim its own territorial waters around the islands and then began to conduct almost daily patrols within its newly-claimed waters – directly challenging the Japanese control that it had largely accepted before.  The purpose of the patrols is two-fold: to demonstrate that the purchase of the islands will not affect China’s sovereignty claims and to challenge Japan’s position that there is no dispute over the sovereignty of the islands.

Although China does not control the waters around the Senkakus (unlike the situation at Scarborough), it no longer accepts de facto Japanese control.  On October 31, a Ministry of Foreign Affairs spokesmanasserted that a new status quo had been created.  After describing China’s new patrols as “routine,” Hong Lai stated that “the Japanese side should face squarely the reality that a fundamental change has already occurred in the Diaoyu Islands.”

In both cases, China responded to challenges to its claims with an enhanced physical presence to bolster China’s position and deter any further challenges.  These responses suggest an even greater willingness to pursue unilateral actions to advance its claims.  In neither case is a return to the status quo ante likely.

[This originally appeared in The Diplomat.]

The Dangerous Math of Chinese Island Disputes

Today, I published a piece in the Asian Wall Street Journal on the current standoff between China and Japan over the Senkaku Islands.

Reviewing China’s behavior in its past territorial disputes, I argue that the danger of escalation is much greater than is commonly believed.

The piece can be viewed here.  You can also email me for an off-print.

PS — The origin title was “Danger in the East China Sea.”