South China Sea

Transparency in Troubled Seas

By Mira Rapp-Hooper
Sunday, December 14, 2014, 2:00 PM

One month ago, the Center for Strategic and International Studies launched a new web-based program, the Asia Maritime Transparency Initiative. The premise of this project will be familiar to many of you: maritime competition in Asia has been steadily increasing in recent years, and doing so in an environment of informational opacity. Maritime geography makes it difficult to monitor events at sea as they occur, and when it comes to disputed territories and competing maritime claims there are numerous actors, each with its own national narrative. AMTI aims to be a source for regular information updates on maritime security issues in East Asia. It also hosts expert analysis from leading maritime security scholars worldwide, as well as historical and documentary resources for researchers.

On the theory that Asia maritime issues are of inherent interest to readers of a national security law website, Benjamin Wittes has asked me to post on Lawfare information about the debates and resources we are hosting at AMTI. In this post, I'm going to cover two issues---the most recent of which we released this week.

The penultimate installation of AMTI focused on the one-year anniversary of China’s declaration of an air defense identification zone (ADIZ) in the East China Sea. An ADIZ is an identified area of airspace extending beyond a national boundary in which civilian aircraft are required to identify themselves and may be subject to interception for that country’s national security.  There are few international agreements that govern ADIZs: they are zones that individual countries establish for their own safety and security, and they do not confer any sovereign rights.  The United States was the first country to establish an ADIZ shortly after World War II. Several countries in Asia also have them, including India, Russia, Japan, South Korea, Taiwan, and since November 23, 2013, China.

China’s announcement of its first ADIZ was controversial for several reasons. First, China’s ADIZ includes multiple disputed territories—most prominently, the Senkaku Islands (Diaoyu in China), which are administered by Japan, but also Ieodo (Suyan) Rock, which South Korea claims too. This led the ROK to expand its own ADIZ. Second, China made its declaration without consulting other states in the region, which is not illegal but does break with custom. Third, China declared that it would require all aircraft, including military aircraft, to identify themselves to Beijing, regardless of whether or not they were bound for China as opposed to passing through the zone in transit elsewhere. This led the United States to fly two B-52 nuclear-capable bombers through the ADIZ in a demonstration of military noncompliance. ADIZs generally increase transparency and reduce the risk of accidents, and Beijing insists that this one is no different. But last November, US and other officials insisted that these three unique features made the East China Sea ADIZ fundamentally destabilizing.

So what of China’s ADIZ one year on? Over at AMTI, Matthew Waxman gives an international legal perspective, noting that there are few rules that govern them with any specificity.  Waxman notes, however, that a potentially serious legal concern is that China might enforce its ADIZ ways that prevent other states from freely transiting the airspace.  He highlights an important link between sea and airspace, noting that customary international law and Article 87 of UNCLOS guarantee overflight rights in international waters, which could be jeopardized by energetic ADIZ intercepts.

Tetsuo Kotani takes this further, noting China’s longstanding opposition to overflight in its Exclusive Economic Zone, and arguing that the ADIZ is aimed at restricting foreign military passage through its EEZ. This year does not permit a firm conclusion on whether or not the ADIZ is destabilizing, Kotani avers. Beijing may not yet have the air domain awareness to fully enforce the ADIZ as declared. Nonetheless, Japan Air Self Defense Force scrambles against Chinese aircraft have increased by 23% since the zone was announced, and there have been several dangerous close encounters involving Chinese fighters in the airspace in question.

chart1

Finally, Zhu Feng lends a Chinese perspective at the anniversary, arguing that Beijing’s ADIZ enforcement has actually been quite mild, calling it a “paper tiger.” Despite this fact, the zone has benefits for Beijing, including as a symbol that China is a major military player in the region. It also allows Beijing to “keep pressure” on Japan, improving its diplomatic hand with respect to the Senkakus.

Waxman and Zhu both raise the looming question of whether Beijing is preparing to follow its East China Sea ADIZ with another in the South China Sea. This could be especially destabilizing, given that there are seven claimants and many overlapping claims in that body of water.  Zhu argues that Beijing is unlikely to declare an SCS ADIZ in the near future, for the simple reason that there is no pressing South China Sea issue that requires a Chinese ADIZ. Recent news reports have noted, however, that in the last several months, China has developed its first airstrip in the Spratly Islands, which could potentially allow it to enforce a South China Sea ADIZ in the future. And if, as Zhu argues, the East China Sea ADIZ confers benefits in the form of great power prestige and the ability to exert diplomatic pressure on other territorial claimants, one can conceive of its appeal to Beijing in the coming years, if not immediately.

On this controversial issue, all three authors agree on at least one thing: Whether an ADIZ is stabilizing or destabilizing can only be determined by its implementation. International law may have little to say about it in theory, but Beijing’s East China Sea ADIZ is sure to celebrate more anniversaries that will give us the opportunity to evaluate it in practice.

In this week's installment, released on December 10, AMTI focuses on the South China Sea. In this issue, two leading scholars react to China’s land reclamation efforts at Fiery Cross Reef.  Tran Truon Thuy argues that Beijing’s activities to enlarge this reef to two square kilometers is a strategic game-changer. An enlarged Fiery Cross will allow fishing squads to extend the scope and duration of their activities, which is likely to stoke tensions with other claimants as they linger in other states’ EEZs. The enlarged island also improves China’s military position, as it may permit Beijing to deploy vessels and aircraft further south and more consistently in the South China Sea, and possibly even block other states’ supply routes.

Yann-huei Song examines the specific impact of China’s Fiery Cross development on Taiwan, noting that Taipei rarely criticizes Beijing’s maritime activities, but has spoken out against these recent efforts because of their unique strategic risk. If China completes its airstrip and builds a military base in the Spratlys, it could serve as a base for reconnaissance aircraft and unmanned systems, could shorten its supply routes, and could also threaten Taipei’s sea lines of communication. Because Beijing’s maritime claims are based on Taipei’s and both adhere to a “One China” policy, Beijing has traditionally been solicitous of Taipei’s position in the Spratlys. It has previously sought cooperation so that it might access Taiwan’s facilities on Itu Aba (Taiping Island), the largest of the features in the island grouping. If China has its own Spratly base, Taiwan’s strategic maritime leverage would decline substantially.

These two arguments highlight a conundrum, however: China’s Fiery Cross development efforts certainly violate the 2002 ASEAN Declaration on Conduct in the South China Sea, but this is a nonbinding agreement, and no binding code has yet been achieved. Strictly speaking, land reclamation is not illegal under UNCLOS, although China cannot legally use its reclamation efforts to “upgrade” a reef into an island and then claim a continental shelf and an EEZ if it was not entitled to one before. So what is to be done?

Michael McDevitt evaluates U.S. policy on the South China Sea based on his recent Center for Naval Analyses report, and finds Washington’s stance to be comprehensive and balanced in its exhortation to all parties to follow international law. He argues that more can be done in several areas: The U.S. should more explicitly support the Philippines’ arbitration against China; It should put more resources into helping South China Sea States improve their own military, coast guard, and monitoring capabilities, and; the U.S. should make its naval and air presence in the South China Sea felt on a daily basis.

Murray Heibert argues that Congress is increasing its scrutiny of China’s South China Sea behavior by including in the National Defense Authorization Act a provision that requires the Pentagon to report to key committees on China’s maritime moves. This will make clear to the administration that the Pentagon has Congress’ full backing to respond energetically to Chinese assertiveness. While McDevitt’s prescriptions and this augmented congressional oversight may direct policymaker’s attention to longer-term South China Sea strategies for the United States, however, there are few obvious steps that Washington can take to stop land reclamation, save continued, energetic efforts to support a binding Code of Conduct in the South China Sea.

Finally, this week also produced two essential documents on legal issues in the South China Sea. The first is the latest installment of the State Department’s Limits in the Seas series, focused on China’s “nine-dash” line claim. China has not clarified what precisely it claims within this line, and this report lays out three different possible interpretations, noting that all three are of dubious international legality at best. The second is China’s position paper explaining why it refuses to participate in the South China Sea arbitration initiated by the Philippines. China has a December 15 deadline to respond to the Philippines memorial to the Arbitral Tribunal. Presumably in lieu of this filing, the highly publicized paper lays out its argument for why it believes the court does not have jurisdiction and also disputes the merits of the Philippines claims.

Finally, in an unanticipated move, Vietnam has filed a response to the Chinese position paper with the arbitral tribunal, protesting the nine-dash line and advancing its own claims to the Spratlys and the Paracels. The Chinese Ministry of Foreign Affairs has responded by denouncing Vietnam’s position as “illegal and invalid.”

These are stormy seas indeed.