In September, I wrote two articles titled “How America Has Not Lost in the South China Sea (SCS)” and “How America Can Keep From Losing in the SCS” respectively. The former provided strategic perspectives and context to the uptick in tensions in the SCS following a year of relative calm since the International Tribunal of the Permanent Court of Arbitration at The Hague handed down its historic and sweeping award on maritime entitlements in the SCS. The latter examined ways and means the United States can regain the strategic initiative, recover the high ground of regional influence, and stave off losing in the SCS by imposing “real” strategic costs to China.
Since then, two developments have emerged in the SCS that compel Washington to push back against Beijing. If America does not, Chinese leaders will read continued U.S. passivity and acquiescence as tacit acknowledgement and implied consent to execute their strategic ambitions and strategies in the SCS unhindered and unchallenged.
Latest Chinese Legal Warfare
Beijing has reportedly unveiled a new legal tactic to promote, assert, and advance its maritime claims in the SCS. The latest lawfare approach involves shifting away from the so-called (and universally not recognized) “nine-dash line (NDL)” claim to a narrower “Four shas (4S)” (Chinese for four sands) claim that more tightly connects the four contested island groups of Pratas Islands, Paracel Islands, Spratly Islands, and Macclesfield Bank. Beijing seemingly now wants to make the legal and diplomatic case (or at least cautiously put it out to gauge response) that the “Four shas” are China’s historical territorial waters, and part of its extended continental shelf and 200 nautical mile Exclusive Economic Zone (EEZ) — despite not offering any new substantive legal arguments or historical evidence to back up the new claim.
Nevertheless, Beijing hopes to reap some diplomatic and legal gains by replacing the NDL with the 4S. Hopeful benefits include circumventing the increasing censure over its widely disputed NDL claim; moderating extant reproach by adopting United Nations Convention on the Law of the Sea (UNCLOS) language; shaping the “law of the sea” by adopting a pseudo-UNCLOS approach; undermining last year’s Tribunal ruling by making a different sovereignty claim from the one found to be illegal and illegitimate; and seeking to allay growing regional concerns, gain potential regional partners, and garner regional good will by excluding (for now) many of Vietnam’s southern offshore oil blocks and possibly the contested Natuna Sea with Indonesia.
Interestingly, a scholar from the National Institute for SCS Studies published a thought piece in The Diplomat a month later that tries to explain and justify the apparent Chinese pivot from the NDL to the 4S. He makes the case that Beijing is admittedly engaging in lawfare, but that Washington has done so for many years as well and that it is acceptable and reasonable for both to do so. He intimates below that China and America are two great powers that should act accordingly with respect to the pursuit of their national interests, and more importantly, regard each other as equals on the world stage in accordance with a “new pattern of relations between great powers.”
Whether the use of this legal tool is disingenuous or clever – or both – China and the United States both use it in regard to the SCS… the latest example of China’s use of lawfare is its “4S” claim… a transition from its NDL claim to a more internationally legitimate position. With this “new” position, China is asserting sovereignty over four groups of features – the Paracels, the Spratlys, Pratas, and Macclesfield Bank. These claims are disputed by other countries. In the case of the submerged Macclesfield Bank, the claim is at odds with the prevalent interpretation of relevant existing international law.
But the real problem is that there are fundamental differences between China and the United States in interpretation of the relevant international law. Indeed, the U.S.-China struggle for control of the SCS is symptomatic of a much deeper clash of values, national interests, and perceived destinies. Their ongoing and intensifying confrontation there is driven by a fundamental disconnect in that they both see themselves as “exceptional” nations that have the “heaven sent” mission to lead and save humanity. So each considers it their right and destiny to dominate and shape the international order to fit their needs. As such, they have their own interpretations of international norms and rules like the Law of the Sea that further their national interest… For both, the existing international norms and rules do not apply if their observance would thwart the pursuit of their national interests.
Chinese Response to New U.S. FONOPS Campaign
Last month, the U.S. government announced the implementation of a new schedule of “regular” freedom of navigation operations (FONOPs) to challenge any excessive maritime claims in the SCS. The move addressed a major criticism of the operations under the previous administration; namely that their randomness and ambiguity made them seem compliant to political, diplomatic, and economic interests, diminishing their value as a strategic messaging and legal signaling tool. FONOPs will now be conducted in greater numbers; broader in scope; more complex; deliberate, calibrated, and quiet in manner; and under the authority of the U.S. Pacific Command rather than the National Security Council (and broader interagency process).
This month, in accordance with the new schedule, America executed its fourth FONOP in just five months, a stark contrast to the Obama administration, which conducted just four FONOPs at irregular intervals from October 2015 to October 2016.
Chinese response to the USS Chafee’s FONOP near the Paracel Islands was expectedly swift and sharp. The Ministry of Foreign Affairs made the following pro forma remarks at a press conference after the operation:
On October 10, the missile destroyer USS Chafee entered China’s territorial sea off the Xisha [Paracel] Islands to carry out a so-called FONOPS without China’s approval… Xisha Islands are an inherent part of the Chinese territory. In accordance with the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, the Chinese government promulgated the baseline of the territorial sea off the Xisha Islands in May 1996. Relevant behavior of the U.S. warship has violated the Chinese law and relevant international law, severely undermined China’s sovereignty and security interests, put in jeopardy the life safety of the frontline personnel from both sides… Chinese government will continue to take firm measures to safeguard China’s territorial sovereignty and maritime rights and interests. We urge the U.S. side to faithfully respect China’s sovereignty and security interests as well as regional countries’ effort to uphold peace and stability in the SCS and stop such wrongdoings.
The Ministry of Defense repeated similar talking points on the same day:
Chinese Defense Ministry voiced strong opposition to the unauthorized entry of a U.S. warship into China’s waters off the Xisha Islands in the SCS. The Chinese navy dispatched a missile frigate, two fighter jets, and a helicopter to warn the U.S. ship away. USS Chafee entered China’s territorial waters near the Xisha islands… provocation infringed upon China’s sovereignty and security, harmed mutual trust between the two armies as well as regional stability. Chinese military will further strengthen its naval and air defense capability to safeguard its sovereignty and security…It is a critical stage for the development of the relationship between Chinese and American armies, and we demand the U.S. side earnestly take steps to correct its mistakes and inject positive energy into bilateral ties.
The U.S. government has been rather quiet about China’s latest lawfare initiative. To date, very little attention has been paid to the new “4S” claim. Only a few news outlets have reported the new claim and analyzed the geopolitical ramifications. Whether deliberate or not, the timing could not have been better for Beijing considering Washington’s preoccupation with the crisis on the Korean peninsula. Nonetheless, America can ill-afford to let this nascent claim gain diplomatic and legal momentum and supplant the NDL claim uncontested. Washington must ask China for discussions and briefings on the new claim, and actively engage in the private and public domains. The United States must also challenge vague or problematic contents, and inquire how they comport with extant international maritime law (UNCLOS) and contribute to the regional security network, and if they do not, why not. Otherwise, silence concedes the strategic initiative to Beijing and allow it to control the strategic narrative.
U.S. Secretary of Defense James Mattis provided a terse, timely, and appropriate response when asked about Beijing’s protests against the latest FONOPS in the SCS by the USS Chafee: “We stay strictly in accordance with international law, so there’s no violation of anyone’s sovereignty.” FONOPs are and should be treated as normal naval operations – executed without notification or fanfare before, during, and after.
For future consideration, I suggest a short follow-on press release to remind all relevant parties on the purpose and intent of U.S. FONOPs. U.S. FONOPs challenge excessive maritime claims, not competing sovereignty claims; do not discriminate against states, but rather focus on the claims that individual states assert; are deliberate in nature, but are not deliberate provocations; uphold the intended meaning of the applicable international law; expect other states to follow international law consistently; and challenge unilateral restrictions, rather than accept rhetoric.
Amid the ongoing 19th National Congress of the Chinese Communist Party (CCP), President Xi Jinping appears to have consolidated greater power and authority and may feel less constrained and more confident to implement a more robust and assertive foreign policy in the East China Sea and SCS as well as other territorial disputes. Beijing seems now, more than ever, determined to move away from Deng Xiaoping’s dictum of “hiding strength, biding time, and never claiming leadership” and expand its global influence, particularly through the Belt and Road Initiative. Hence, it is much better in the long run, for the United States to set the tone and parameters early into his second term in office (as president, general secretary of CCP, and chairman of the Central Military Commission). Otherwise, Xi will continue to gain political momentum and be that much harder to deter, dissuade, and influence in the future. President Donald Trump’s state visit to Beijing from November 8-10, followed by attendance at the Asia-Pacific Economic Cooperation (APEC) Leaders Meeting in Danang (Vietnam) on November 11-12 and East Asia Summit (EAS) in Manila (Philippines) on November 13-14 offer additional opportunities to continue encouraging China to become a more responsible global stakeholder that contributes positively to the international system.
Tuan N. Pham has extensive experience in the Indo-Asia-Pacific, and is widely published in national security affairs. The views expressed therein are his own and do not reflect the official policy or position of the U.S. Government.