The South China Sea: Island Building and Evolving U.S. Policy

ABSTRACT

This paper explores the growing involvement of the U.S. security establishment in declaratory United States South China Sea (SCS) policy, a trend that has been building over 2014–15 because of China's island building in the South China Sea. The focus of that policy is that China's newly created SCS islands will not constrain legal U.S. maritime activity on, under, and over the high seas. This was announced by the Secretary of Defense, not the Secretary of State, in Singapore in May 2015, and was a response to the disproportionately large scale of China's unannounced activity that was turning rocks and submerged shoals into credible military outposts. China was accused of undermining trust by introducing a military power dimension to the already complicated sovereignty disputes in the Spratly Islands. These accusations are correct. The reality is that China has changed the strategic balance in the Spratly Island chain by creating facilities on its new islands that will militarily overshadow the garrisons and defensive capabilities of the features occupied by Vietnam, the Philippines or Malaysia. Despite Chinese claims to the contrary, the U.S. military has no doubts that the island building is designed specifically for use as PLA operating bases. Among its more controversial recommendations, this paper puts forth a policy approach that puts more emphasis on deterrence. In this regard, Washington's call for Hanoi to stop improving the facilities it occupies in the Spratlys, probably to appear even-handed, seems strategically misguided. The goal should be to return some sort of strategic equilibrium to the Spratlys; Vietnam is the claimant best equipped to accomplish that. The other aspect of deterrence that will hopefully keep the peace is the U.S.-Philippine Mutual Defense Treaty because of its potential applicability if Filipino servicemen are harmed.

KEYWORDS:

• China
• PLA
• Spratly Islands
• South China Sea
• Vietnam

Notes

Secretary of Defense Ashton Carter, “A Regional Security Architecture Where Everyone Rises,” Presentation, IISS, Shangri-La Dialogue, Singapore, May 30, 2015, http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1945.

Robert C. Beckman, “Large Scale Reclamation Projects in the South China Sea: China and International Law,” RSIS Commentary, October 29, 2014, http://www.rsis.edu.sg/wp-content/uploads/2014/10/CO14213.pdf.

China has occupied the “rocks” Fiery Cross Reef, Cuarteron Reef, and Johnson Reef South along with the submerged at high tide (known as low tide elevations) features Gaven Reef, Subi Reef, Hughes Reef since 1988. China seized Mischief Reef, another low tide elevation in 1995. J. Ashley Roach, “China's Shifting Sands in the Spratlys,” Insights 19, no. 54, American Society of International Law, https://www.asil.org/insights/volume/19/issue/15/chinas-shifting-sands-spratlys.

David Alexander and Rachel Armstrong, “U.S. Says China's Island Building Erodes Security: Beijing Angered,” Reuters, May 30, 2015, http://www.reuters.com/article/us-asia-security-idUSKBN0OF01J20150531.

The Asia Maritime Transparency Initiative (AMTI) a website sponsored by the Center for Strategic and International Studies (CSIS) in Washington, DC has carefully documented China's reclamation activities with high resolution satellite photography. See http://amti.csis.org/.

For an excellent assessment of the implications of the new 10,000 foot runway on Fiery Cross Reef see, Andrew Erickson, “Lengthening Chinese Airstrips May Pave Way for South China Sea ADIZ,” The National Interest, June 29, 2015, http://nationalinterest.org/blog/the-buzz/lengthening-chinese-airstrips-may-pave-way-south-china-sea-12736.

Beijing has announced that island building per se is complete; that is, the destruction of coral and associated dredging, but the construction of buildings and other necessary facilities goes on. Zachery Keck, “Exposed: China Did NOT Halt Island Building Project in the South China Sea,” The National Interest, August 6, 2015, http://nationalinterest.org/blog/the-buzz/exposed-china-did-not-halt-island-building-project-the-south-13512.

“Since 2014, China has reclaimed 2,000 acres—more land than all other claimants combined over the history of their claims. When combined with a range of activities, including: assertion of its expansive Nine-Dash Line claim, relocation of oil rigs in disputed maritime zones, efforts to restrict access to disputed fishing zones, and efforts to interfere with resupply of the Philippine outpost at Second Thomas Shoal, we see a pattern of behavior that raises concerns that China is trying to assert de facto control over disputed territories, and strengthen its military presence in the South China Sea.” David Shear, Assistant Secretary of Defense for Asian and Pacific Security Affairs, Statement Before the Senate Committee on Foreign Relations, May 13, 2015, http://www.foreign.senate.gov/imo/media/doc/051315_Shear_Testimony.pdf.

Daniel R. Russel, Assistant Secretary, Bureau of East Asian and Pacific Affairs, ” Maritime Issues in East Asia,” Testimony Before the Senate Foreign Relations Committee, Washington DC, May 13, 2015, http://www.state.gov/p/eap/rls/rm/2015/05/242262.htm.

China's Foreign Ministry spokesman cited in ibid.

Kevon Baron, “China's New Islands are Clearly Military, U.S. Pacific Chief Says,” Defense One, July 24, 2015, http://www.defense one.com/threats/2015/07/chinas-new-islands-are-clearly-military/118859.

For decades the NDL only appeared on Chinese (and Republic of China; ROC) maps and charts. Beijing has apparently opted to interpret it more broadly than the Republic of China ever intended. Anecdotal evidence from Taipei strongly suggests it was only intended to indicate a claim to all the islands and features in the South China Sea. Since the NDL was created by the Republic of China it stands to reason that Taipei has the ability to search its archives and present a clarifying statement of what was intended when its predecessor government first created this cartographical annotation. So far the Ma Ying-jeou administration has been unwilling to provide that clarity. That said, in a speech delivered on September 1, 2014, Ma Ying-jeou suggested that what is now known as the NDL was in fact a way for the ROC to claim the islands of the SCS. Taiwan Office of the President: “Ma Ying-jeou Attends Exhibition of Historical Records for South China Sea,” Taipei Office of the President in Chinese, http://www.president.gov.tw.

Assistant Secretary of State for East Asia Russel was blunt in his February 5, 2014 testimony, stating, “I want to emphasize the point that under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on land features would be inconsistent with international law” (emphasis added). Testimony of Daniel Russel, Assistant Secretary of State, Bureau of East Asian and Pacific Affairs before the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific, February 5, 2014, “Maritime Disputes in East Asia,” http://www.state.gov/p/eap/rls/rm/2014 /02/221293.htm.

An authoritative, but not well publicized, report from the U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas, No. 143, December 5, 2014, 4. http://www.state.gov/documents/organization/234936.pdf.

The January 2013 edition of the American Journal of International Law (AJIL) features an Agora on the South China Sea Disputes. One of the articles in the Agora is by Robert Beckman, entitled “The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea.” The Beckman piece remains the single best short analysis of the Law of the Sea issues surrounding the various claims in the SCS. He explores Chinese “ambiguity” in detail. http://www.jstor.org/discover/10.5305/amerjintelaw.107.1.fm, 150–151.

Andrew Chubb, “China's Latest Oil Rig Move: Not a Crisis, and maybe an Opportunity?” the blog Southsea conversations, https://southseaconversations.wordpress.com/2015/06/27/chinas-latest-oil-rig-move-not-a-crisis-and-maybe-an-opportunity/#more-2189; see also Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven, CT: Yale University Press, 2014), 121–150 for a thorough discussion of how China used economic leverage as well as aggressive use of fishing boats and constabulary vessels to frustrate Philippine and Vietnamese efforts to survey potential oil and gas fields.

The Philippines raised three central issues. The most important is whether China can lawfully make any maritime claim based on its nine-dash line, either to sovereignty over the waters or to sovereign rights to the natural resources within the waters. The Philippines requests the arbitral panel to rule that China can only claim rights to maritime space in maritime zones measured from naturally formed land territory, and that claims based on the nine-dash line are not consistent with UNCLOS. The main purpose of the case is to challenge the legality of China's claim to historic rights and jurisdiction inside the nine-dash line. The second major issue raised is a Philippine request for ruling that all of the “islands” occupied by China (the naturally formed areas of land above water at high tide) are really only “rocks” entitled only to a 12 nm territorial sea because they cannot “sustain human habitation or economic life of their own,” as set out in Article 121(3) of UNCLOS. It also requests the Tribunal to declare that China has unlawfully claimed maritime entitlements beyond 12 nm from these features. The third major issue raised addresses the geographic features currently occupied by China that do not meet the definition of an island as set out in Article 121(1) because they are not naturally formed areas of land above water at high tide (these being Mischief Reef, McKennan Reef, Gaven Reef, and Subi Reef). The Philippines argues that such features are not subject to a claim of sovereignty and that China's occupation of them is illegal because they are part of the continental shelf of the Philippines. Robert Beckman, “The Philippine v. China Case and the South China Sea Disputes,” Asia Society/ Lee Kwan Yew SPP Conference, March 13–15, 2013, http://cil.nus.edu.sg/wp/wp-content/uploads/2013/03/Beckman-Asia-Society-LKY-SPP-March-2013-draft-of-6-March.pdf.

Ministry of Foreign Affairs of the Peoples Republic of China: Position Paper on the Matter of Jurisdiction in the South China Sea Arbitration, December 7, 2014, http://www.cfr.org/territorial-disputes/chinese-ministry-foreign-affairs-position-paper-matter-jurisdiction-south-china-sea-arbitration/p33978.

Permanent Court of Arbitration Press Release, “Arbitration between the Republic of the Philippines and the People's Republic of China,” The Hague, October 29, 2015, http://www.pcacases.com/web/sendAttach/1503.

James Kraska, “A Legal Analysis of the Philippine-China Arbitration Ruling,” The Diplomat, November 2, 2015, http://thediplomat.com/2015/11/a-legal-analysis-of-the-philippine-china-arbitration-ruling/.

John Kerry, Joint Press Availability With Vietnamese Deputy Prime Minister and Foreign Minister Pham Binh Minh, December 12, 2013, http://www.state.gov/secretary/remarks/2013/12/218747.htm.

An excellent article on the Mischief Reef episode is Danial J. Dzurek, “China Occupies Mischief Reef in Spratly Gambit,” IBRU Boundary and Security Bulletin, April 1995, https://www.dur.ac.uk/ibru/publications/view/?id=58.

Renato Cruz De Castro, “China's Realpolitik Approach in the South China Sea Dispute: The Case of the 2012 Scarborough Shoal Stand-Off,” http://csis.org/files/attachments/130606_DeCastro_ConferencePaper.pdf and Francois-Xavier Bonnet, “Geopolitics of Scarborough Shoal,” Research Institute on Contemporary Southeast Asia (IRASEC), November 2012.

Taiwan (the Republic of China) controls the Pratas Island group located at the NE area of the SCS. No other country except China claims these features. Since the Peoples Republic of China is the legal successor state to the Republic of China, I choose to consider it legally China's. The fact it has not elected to evict the ROC garrison, something it could easily do, is caught up in the larger issue of the Taiwan–Mainland dynamic.

Marwyn S. Samuels, Contest for the South China Sea (New York: Methuen, 1982), 4, and Hayton, The South China Sea: The Struggle for Power in Asia, 53–56.

Robert Beckman, Director, Centre for International Law, Singapore, “Legal Framework for Joint Development in the South China Sea,” http://cil.nus.edu.sg/wp/wp-content/uploads/2012/12/Beckman-Paper-Hainan-Dec-6-7-submitted-Nov-22.pdf, 17. See also Chas W. Freeman, Jr., “A New Set of Great Power Relationships,” Remarks to the 8th International Conference on East Asian Studies, http://www.mepc.org/articles-commentary/speeches/new-set-great-power-relationships?print. Freeman argues, “In the end, therefore, resort to the well-established international legal principle of uti possidetis is the obvious solution. This Latin phrase means that, in the absence of agreement to the contrary, everyone is entitled to keep what they have regardless of how they got it. Agreement between the claimants to apply this principle and the law of the sea to the South China Sea would end their disputes over territory, quell concerns about armed conflict, and facilitate the legal apportionment of seabed resources.”.

According to the Foreign Ministry of China; “The concept of ‘setting aside dispute and pursuing joint development’ has the following four elements: 1. The sovereignty of the territories concerned belongs to China. 2. When conditions are not ripe to bring about a thorough solution to territorial dispute, discussion on the issue of sovereignty may be postponed so that the dispute is set aside. To set aside dispute does not mean giving up sovereignty. It is just to leave the dispute aside for the time being. 3. The territories under dispute may be developed in a joint way. 4. The purpose of joint development is to enhance mutual understanding through cooperation and create conditions for the eventual resolution of territorial ownership,” http://www.fmprc.gov.cn/mfa_eng/ziliao_665539/3602_665543/3604_665547/t18023.shtml.

Ben Blanchard, “China Fires Back at South China Sea Claimants with Reclamation Accusations,” Reuters, April 29, 2015, http://www.reuters.com/article/2015/04/29/us-china-southchinasea-idUSKBN0NK0VB20150429.

Low-level coercion, such as China's ongoing efforts in the East and South China Seas, sit between peacetime and wartime. Because low-level coercion does not fit cleanly into the black and white categories of war and peace, some experts refer to these conflicts as “grey zones.” Zack Cooper, “America's Massive Military Dilemma in Asia: Visibility vs. Vulnerability,” The National Interest, January15, 2015, http://nationalinterest.org/blog/the-buzz/americas-massive-military-dilemma-asia-visibility-vs-12040ry.

An authoritative discussion of the rationale behind this decision is found in Jeffery A. Bader, Obama and China's Rise: An Insider's Account of America's Asia Strategy (Washington, DC: Brookings Institution Press, 2012), 104–105.

This disagreement has resulted in two serious incidents: the 2001 mid-air collision between a U.S. Navy surveillance aircraft (EP-3) and an intercepting Chinese navy fighter, and the 2009 episode in which Chinese fishermen and paramilitary ships harassed U.S.N.S. Impeccable. More recently, a dangerously close intercept of a U.S. Navy P-8 maritime patrol aircraft created another diplomatic dustup. At this stage both sides continue to vehemently disagree on this fundamental point, but have begun to put in place measures to ensure that encounters at sea or in the air are conducted safely. The goal is to reduce the risk of accidents.

Mark Felsenthal and Matt Spetalnick, “Obama Says U.S. Commitment to Defend Philippines ‘Ironclad,‘” Reuters, April 29, 2014, http://www.reuters.com/article/2014/04/29/us-philippines-usa-obama-idUSBREA3S02T20140429 and Cynthia Balana and Nikko Dizon, “US Affirms ‘Ironclad’ Support for Philippines,” Philippine Daily Inquirer, May 29, 2015, http://globalnation.inquirer.net/123613/us-affirms-ironclad-promise-to-defend-philippines.

CSIS Audio, A presentation by Admiral Harry B. Harris, Commander, U.S. Pacific Command, “Strategic Opportunities in the Indo-Asia-Pacific,” January 27, 2016, http://csis.org/node/59384/expert.

This is also true for Singapore. In April 2014, with when President Obama and President Aquino signed an agreement that will improve U.S. military access to the Philippines. Press Briefing by Deputy National Security Advisor for Strategic Communication Ben Rhodes and NSC Senior Director for Asian Affairs Evan Medeiros, Grand Millennium Hotel, Kuala Lumpur, Malaysia, April 27, 2014, http://www.whitehouse.gov/the-press-office/2014/04/27/press-briefing-deputy-national-security-advisor-strategic-communication.

“It is my belief that the consistent presence of the Seventh Fleet and our recent force posture movements have been significant factors in deterring conflict between claimants in recent years … a strong and sustained US military presence … is welcomed by the overwhelming majority of countries in the region … [however] … diplomacy will continue to be our instrument of first resort. See Russel, “Maritime Issues in East Asia,” Testimony Before the Senate Foreign Relations Committee, Washington DC, May 13, 2015, http://www.state.gov/p/eap/rls/rm/2015/05/242262.htm. See Lauren Chatmas, “USS Lassen Promotes Maritime Security in the South China Sea,” U.S. Navy News Service, July 9, 2015, http://www.navy.mil/submit/display.asp?story_id=90056.

Ann Marie Murphy, “Jakarta Rejects China's ‘Nine-Dash Line,‘”Asia Times Online, April 3, 2104, http://www.atimes.com/atimes/Southeast_Asia/SEA-01-030414.html.

The Obama administration established either strategic or comprehensive “partnerships” with Indonesia in November 2010, Vietnam in July 2013, Malaysia in April 2014 and ASEAN in November 2015. The United States has been a formal treaty ally of the Philippines since 1951, and is a “Strategic Partner” with Singapore; a relationship that was formalized in 2005 when the Strategic Framework Agreement with Singapore was signed.

China's behavior has also had an impact in northeast Asia. It caused Japan to revise its prohibition on collective self-defense, made it bureaucratically easy for Tokyo to undertake a wrenching change in its strategic center of gravity south to its Ryukyu Island chain, and begin the process of recreating for the first time since 1945 a Japanese amphibious assault capability with direct U.S. assistance. It made it politically possible for increase in the Japanese defense budget for the first time in over a decade. Significantly, it has provided the rationale for an update of the U.S.–Japan roles and missions for the first time since the mid-1990s, with China in the bulls-eye.

William Yale, “China's Maritime Silk Road Gamble, ” The Foreign Policy Institute, Johns Hopkins, SAIS, March 24, 2015, http://www.fpi.sais-jhu.edu/#!China's-Maritime-Silk-Road-Gamble/c1qvb/5511bfb60cf21e26baa971ab.

Jeremy Page, Carol Lee, and Gordon Lubold, “China's President Pledges No Militarization in Disputed Islands,” Wall Street Journal, September 25, 2015, http://www.wsj.com/articles/china-completes-runway-on-artificial-island-in-south-china-sea-1443184818?cb=logged0.8426927910956248.

Michael McDevitt, “A Modest Proposal to Help ASEAN Reconcile Their Overlapping Claims in the Spratlys,” PACNET #40, July 9, 2015, http://csis.org/publication/pacnet-40-modest-proposal-help-asean-reconcile-their-overlapping-claims-spratlys.

The White House, Office of the Press Secretary, ” FACT SHEET: U.S. Building Maritime Capacity in Southeast Asia,” November 17, 2015, https://www.whitehouse.gov/the-press-office/2015/11/17/fact-sheet-us-building-maritime-capacity-southeast-asia and Aaron Mehta, “Carter Announces $425 M in Pacific Partnership Funding,” Defense News, May 30, 2015, http://www.defensenews.com/story/defense/2015/05/30/carter-announces-425m-in-pacific-partnership-funding/28206541/.

This was a Freedom of Navigation Operation, better known as a FONOP. According to the Department of Defense the FON program is, “actively implemented against excessive maritime claims by coastal nations in every region of the world, based upon the Department's global interest in mobility and access. The Program is principle-based, in that it is administered with regard to the excessive nature of maritime claims, rather than the identity of the coastal nations asserting those claims. As a result, U.S. forces challenge excessive claims asserted not only by potential adversaries and competitors, but also by allies, partners, and other nations” (emphasis added). U.S. Department of Defense, “Freedom of Navigation Program,” Fact Sheet, March 2015, http://policy.defense.gov/Portals/11/Documents/gsa/cwmd/DoD%20FON%20Program%20--%20Fact%20Sheet%20(March%202015).pdf.

USNI News, “Document: SECDEF Carter Letter to McCain on South China Sea Freedom of Navigation Operation,” January 5, 2016, http://news.usni.org/2016/01/05/document-secdef-carter-letter-to-mccain-on-south-china-sea-freedom-of-navigation-operation. The letter itself was dated December 22, 2015. The reason that the operation triggered many public questions is best spelled out in the article by Bonnie S. Glaser and Peter A. Dutton, “The U.S. Navy's Freedom of Navigation Operation Around Subi Reef: Deciphering U.S. Signaling,” The National Interest, November 6, 2015, http://nationalinterest.org/feature/the-us-navy%E2%80%99s-freedom-navigation-operation-around-subi-reef-14272.

The State Department's explanation of the FON Program is as follows: “U.S. policy since 1983 provides that the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses. The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention. U.S. Department of State, Fact Sheet, ” Maritime Security and Navigation,” undated, http://www.state.gov/e/oes/ocns/opa/maritimesecurity/.

Graham Webster, “How China Maintains Strategic Ambiguity in the South China Sea,” The Diplomat, October 29, 2015, http://thediplomat.com/2015/10/how-china-maintains-strategic-ambiguity-in-the-south-china-sea/.

Ibid. In the last sentence of the letter Carter writes: “We will continue to demonstrate as much by exercising the rights, freedoms and lawful uses of the seas all around the world, and the South China Sea will be no exception.”

Additional information

Notes on contributors

Michael McDevitt

Michael McDevitt is currently a Senior Fellow at CNA Strategic Studies at Center for Naval Analyses (CNA), a Washington, D.C.-area non-profit research and analysis company. He has been involved in U.S. security policy and strategy in the Asia-Pacific for the last 25 years, in both government policy positions and, following his retirement from the U.S. Navy, for the last decade and a half as an analyst, author, and commentator. He is a graduate of the University of Southern California, Georgetown University where he received a Master's degree in U.S.-East Asian diplomatic history, and the National War College. In his final active duty assignment he returned to the National War College as its Commandant. During his navy career he held four at-sea commands, including an aircraft carrier battlegroup. He was the Director of the East Asia Policy office for the Secretary of Defense during the George H.W. Bush Administration. He also served for two years as the Director for Strategy, War Plans and Policy (J-5) for US CINCPAC. He has been an active participant in conferences and workshops regarding security issues in East Asia, and has had a number of papers published in edited volumes on this subject. His most recent research focus has been the maritime dimension of China's national strategy.