US Says “Rules” Should Be “Enforced” in the South China Sea
The US has not ratified UNCLOS despite formal acceptance by 168 parties. (Photo: US Navy)
By Mark J. Valencia

US Says “Rules” Should Be “Enforced” in the South China Sea

Feb. 19, 2019  |     |  0 comments

Fresh from his talks with senior Chinese military leaders in Beijing in January 2019, US Chief of Naval Operations Admiral John Richardson revealed some of their substance. Apparently, little if any progress was made and the situation remains fraught with potential international incidents — and worse. The discussions focused primarily on how to manage increasingly dangerous encounters between vessels and aircraft of the two navies. Given their strong opposing positions this is not a surprise. But what is surprising is that Richardson thought progress could be made without some compromise involving the policies and actions of both.

Given the strategic context, Richardson’s expectations were unrealistic. The US-China dialectic is simple and stark. America wants to remain the leading strategic power in Asia and China wants to replace it. They are engaged in struggle on many fronts but the tips of their spears are in and over China’s “near seas” — especially the South China Sea. Here, US’ Freedom of Navigation Operations (FONOPs) and intelligence, surveillance and reconnaissance (ISR) probes have come face to face with China’s naval expansion and rising ambitions. China wants to deny US military access to its “near seas” in the event of a conflict. Obviously, the US is resisting and the naval assets of both are confronting each other.

Indeed, the two navies have a history of dangerous incidents in the South China Sea, beginning with a collision between a Chinese jet fighter and a US EP3 surveillance aircraft in 2001.The Richardson China meetings were probably precipitated by this history and the September 30, 2018 incident near collision between a Chinese warship and the USS Decatur, a guided missile destroyer, while it was conducting a FONOP. The Pentagon accused the Chinese warship of maneuvering in an “unsafe and unprofessional maneuver”. Shortly thereafter, PLAN Senior Captain Zhang Junshe warned in an interview that the US would be to blame for any military clash between the two. In January, after another US FONOP near the Chinese-claimed Paracel Islands, China deployed advanced DF-26 anti-ship ballistic missiles to “safe” havens in the north. The “ship killer” missile has a maximum range of about 3400 nm bringing much of the South China Sea within range. Also, Richardson must have known that another FONOP would soon be carried out challenging China’s claims to Mischief Reef and Second Thomas Shoal.

This history, the recent series of actions and reactions, and the knowledge that the US would be continuing what China sees as provocative acts, probably led Richardson to conclude that things were likely to get worse — not better — and that something needed to be done to prevent a worst scenario.

The talks apparently did not go well. Before leaving for the dialogue, Richardson indicated the seriousness of the situation by saying that an “…exchange of views is essential, especially in times of friction… Honest and frank dialogue can improve the relationship in constructive ways, help explore areas where we share common interests, and reduce risk while we work through our differences.”

This optimism was apparently misplaced. After his visit, Richardson concluded that “we have differences — some big differences in terms of how we consider the South China Sea”. He added that the parties’ positions are “just at odds right now”.

This is obvious. But what stands out is that a senior US military leader is admitting the seriousness of the situation in such specific and stark language. Richardson observed that a “consistent” US naval presence in the region and “rapidly expanding PLA Navy demanded more ways to minimize the chance of miscalculations between heavily armed warships”.  Richardson’s phrase of “consistent US naval presence” probably refers to the FONOPs and ISR probes. It must seem puzzling to some that the obvious solution of reducing or ceasing all together what China sees as unnecessarily provocative threats of use of force never entered his mind. To the contrary, Richardson upped the ante by making it clear to his Chinese interlocutors that its “militarization” of South China Sea islands was a destabilizing factor for the world, not just the region.

A compromise that recognizes and addresses the underlying forces at work would have a far better chance of reducing the dangerous encounters than trying to enforce the “rules”.

Richardson was clearly frustrated by the lack of progress. He is now suggesting that the solution is to develop new more “muscular” ways to enforce the rules designed to govern encounters between navies, and to extend them to coastguards and maritime militias. The latter part of this statement was clearly aimed first and foremost at China since in the region only it and Vietnam have maritime militia; the US does not.

He justified the need for an enforcement mechanism by arguing that it would make it “harder to play fast and loose with the rules”.

But there are sure to be critical differences over what exactly are the “rules”; who is going to enforce them; and how?’

The US bases its FONOPs on its interpretation of customary law and the UN Convention on the Law of the Sea (UNCLOS). However, the US has not ratified UNCLOS despite formal acceptance by 168 parties including all major naval powers. China has ratified the UNCLOS and interprets the relevant rules differently.

But Richardson is not talking about the fundamental legal issues. He assumes that the US interpretation is the only correct one and this is of course part of the problem. Instead he is focused on enforcing the voluntary Code for Unplanned Encounters at Sea (CUES) — a US initiated agreement reached in 2014 with the aim of reducing incidents at sea between navies. But China and others may see this US push to expand its application to “enforce” it as just another example of the US “playbook” changing voluntary agreements that benefit it into soft and eventually hard law. First it proposes a reasonable sounding code that should benefit all. In this instance, because it knows it will be stepping up its naval pressure on China, it wants to use CUES to rein in China’s responses to what China sees as provocations. So now it wants others to agree that the code should be “enforced”. But China and others are likely to see through this gambit and resist it. Moreover, the proposal raises fundamental questions regarding the “international order” — what is it; how does it evolve; should it be enforced; and if so by whom, and how?

The problem with CUES is that most such encounters between the US and Chinese navies are neither unintentional nor even unexpected. They are purposeful testing of limits and the sending of “messages”. This aspect of the struggle is not likely to ameliorate any time soon.

So, what to do? The only way out of this conundrum is compromise.

In one scenario, China refrains from further occupation, construction and “militarization” on its claimed features. It also pledges not to undertake any new provocative actions like occupying and building on Scarborough Shoal, harassing other claimants in the area or declaring and enforcing an air defense identification zone over the Spratlys. The US, in turn, decreases or ceases altogether its provocative FONOPs there as well as its close-in ISR probes, which China says violate its national laws and threaten its security. Both would also refrain from belligerent threats and rhetoric. Such a compromise that recognizes and addresses the underlying forces at work would have a far better chance of reducing the dangerous encounters than trying to enforce the “rules”.

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