The Debate Regarding US Navigation Policy in the South China Sea: Another Perspective
Photo Credit: Sino Defence Forum
By Mark J. Valencia

The Debate Regarding US Navigation Policy in the South China Sea: Another Perspective

Nov. 29, 2017  |     |  0 comments

PacNet, a newsletter published by Washington’s premier security think tank — the Center for Strategic and International Studies (CSIS), recently carried an eloquent debate between Stanford scholar Donald Emmerson and Harvard-affiliated scholar Andrew Taffer focusing on the US policy and practice of “fly, sail, and operate anywhere international law allows” (FSOP). While both make some excellent points, there are a few with which I respectfully disagree. More fundamentally, the debaters may be missing the forest for the trees.

Taffer was responding to an essay by Emmerson entitled “Matching power with purpose in the South China Sea : a proposal.” Emmerson argues that FSOP is not a strategy in and of itself, but that it should be incorporated into “a strategy whose purpose is to keep the South China Sea free of exclusionary control by any single country, including the US itself.” Taffer does not disagree with Emmerson’s proposal, but considers it unnecessary because the FSOP policy is already “imbued with purpose.”

Both are correct. FSOP is not a strategy by itself. But it is a critical part of an intentionally unarticulated US strategy to maintain a military edge over China in the South China Sea. One might even go a step further and ask “a strategy to attain what goal”? The answer is also unstated — at least in polite company. But China thinks the US strategic goal is to maintain US hegemony over the region. Whether this is correct, or “good” or “bad,” I leave to others to assess.

Further, I do not agree with Emmerson that “FSOP supports the need for a global order on agreed and observed rules.” Rather, FSOP is an attempt by the US to impose its particular interpretations of the “rules.” Indeed, FSOP and the incidents that result from its implementation are the tip of the iceberg of the tactical and strategic contest between China and the US in the South China Sea.

Let me explain the reasoning behind my admittedly bold assertions. China’s naval expansion, rising capabilities, and ambitions in the South China Sea are increasingly bringing it face to face with the US Navy. Indeed the two have converging strategic trajectories. China is developing what the US calls an anti-access/area denial (A2/AD) strategy that is designed to control China’s near seas and prevent access to them by the US in the event of a conflict. The US response is Joint Concept for Access and Maneuver in the Global Commons (formerly the Air-Seat Battle Concept) which is intended to cripple China’s command, control, communications, computer and intelligence, surveillance, and reconnaissance systems (C4 ISR). This means that C4 ISR is the “tip of the spear” for both sides and both are trying to dominate this sphere over, on, and under China’s near seas.

In its use of “lawfare” to advance this strategy, the US has cleverly conflated freedom of commercial navigation with freedom to undertake military intelligence, surveillance, and reconnaissance (ISR) missions in waters under other countries’ jurisdiction — particularly in and over China’s 200nm Exclusive Economic Zone (EEZ). Indeed, both analyses seem to give credence to the canard that China is somehow a threat to commercial freedom of navigation. This is a false assumption. It could be — but then so could the US one day be a threat to China’s commercial shipping. Both are unlikely during peacetime.

Indeed, as Ralph Cossa, President of Pacific Forum CSIS, says, there is little to worry about — at least for the US: “The South China Sea is not and will not be a Chinese lake and the Chinese, even with their artificial islands, cannot dominate the sea or keep the US Navy out of it.” Retired Admiral Michael McDevitt of the Center for Naval Analysis asks skeptically: “What vital US interest has been compromised? Shipping continues uninterrupted, the US continues to ignore their requirement for prior approval [of ops in their EEZ], our MDT with Manila remains in force [and] the Vietnamese are even more dug in on their 20 odd Spratly holdings.”

So, what do these ISR missions do, and why does China oppose them? Some say they collect communications between the target country’s command-and-control centers and radar and weapons systems including surface-to-air missiles, anti-aircraft artillery, and fighter aircraft. US EP-3 activities have also been alleged to include interference with communications, jamming of radar, and cyber attacks. Other US ISR probes probably collect “actionable” intelligence for expeditionary and irregular warfare.

It turns out that it is not only China that should be concerned about US ISR planes and vessels. Targets of interest included — in addition to China — the Philippines and US ally Thailand.

The activities of ISR aircraft like the EP-3 and the Poseidon 8A and associated incidents, as well as those involving the US navy ships Bowditch, Impeccable and Cowpens, may have collectively included active “tickling” of China’s coastal defenses to provoke and observe a response, interference with shore-to-ship and submarine communications, violation or abuse of the consent regime for marine scientific research, damage to the environment, and tracking China’s new nuclear submarines for potential targeting.

If so, these would not be passive intelligence collection activities commonly undertaken and usually tolerated by many states including China, but intrusive, provocative and controversial practices that may also violate both China’s domestic laws and its rights under the 1982 UN Convention on the Law of the Sea (UNCLOS) regarding its marine scientific consent and environmental protection regimes. This would occur when and if the Poseidon 8 drops sonobuoys (which is part of its repertoire) or the Impeccable and Bowditch deploy “scientific instruments” in China’s EEZ. China’s EEZ environment may be degraded if US sonar systems or live fire exercises adversely affect fish and mammals like whales and dolphins.

But much about these activities is classified and therefore unconfirmed. What are the known facts? A confidential US Navy-National Security Agency (NSA) report revealed by Edward Snowden shows that China’s concerns regarding America’s ISR missions off its coasts are justified. The 2001 report reveals that in the EP-3 incident the crew was unable to destroy all the secret data and systems on board and it details the scope of secrets exposed to and likely extracted by China’s experts.

This includes the fact that the US has “the ability to locate and collect transmissions to or from Chinese submarines and to correlate them to specific vessels.” The plane also carried data that clarified “how much the US knew about China’s submarine-launched ballistic missiles program.” This weapons system would be used in China’s response to a nuclear first strike by an adversary and is thus China’s fundamental deterrent against such an event — obviously a core national security interest.

It turns out that it is not only China that should be concerned about US ISR planes and vessels. The report also reveals that such probes target US allies. The plane carried information about the emitter parameters for some of their weapons systems. This information could be used by China to help it collect and process their communications. Worse, the incident also exposed US NSA directives establishing policy for signals intelligence activities. Targets of interest included — in addition to China — the Philippines and US ally Thailand. According to the report, the missions spur targeted militaries to react, thus creating communications that can be intercepted.

China, unlike Malaysia and Thailand, does not oppose all foreign military activities in its EEZ without its permission. But China certainly does object by word and deed to what it perceives as the US’ abuse of the right of freedom of navigation and a threat to use force — a possible violation of the United Nations Charter — let alone UNCLOS.

Regarding UNCLOS, Taffer states that “Washington strictly abides by its terms.” This is simply not so — at least in the eyes of China and others. Washington abides by its interpretations of terms critical to freedom of navigation in a package-deal treaty it did not ratify — and then demonstrates (enforces) these interpretations with gunboats. China apparently believes that these activities violate the peaceful purposes/uses provisions in Articles 88, 141, and 301 of UNCLOS, as well as its UNCLOS EEZ resource rights and environmental obligations in the EEZ. China also alleges that the US is “preparing the battle field” and that this — as well as the use of military vessels to demonstrate its interpretations — constitute non-peaceful threats of use of force, a violation of the UN Charter as well as UNCLOS. In particular, China alleges that the US is not abiding by its obligation to pay “due regard” to its rights and duties as a coastal state. Such due regard in the EEZ is required by UNCLOS for both the coastal state and the user state, but it is undefined. Unfortunately, the world will never know who is “right” because the US is not a party to UNCLOS and therefore cannot avail itself of — or be brought before — its peaceful dispute settlement process.

This is hardly a furthering of “agreed” rules. Indeed, the US may be violating others’ interpretations thereof. In sum, some FSOP missions may not be consonant with international law. Moreover, in the South China Sea they are a critical part of a strategy to militarily constrain and contain China.

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