Published by The Lawfare Institute
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The South China Sea’s Continued Militarization
China’s continued militarization of the South China Sea has put both neighboring and Western countries on high alert. In December 2021, China deployed both of its aircraft carriers—Liaoning and Shandong—to conduct live-fire drills in the South China Sea. The exercises, held near Hainan Island and in the Gulf of Tonkin, included main gun firing, mine hunting and rescue missions. Although the aircraft carriers worked separately, Chinese state-owned news outlet the Global Times reported that the aircraft carriers will soon form a dual carrier group. The People’s Liberation Army (PLA) also recently made more covert military advancements.
The Center for Strategic and International Studies (CSIS) reported in December that the PLA is bolstering its electronic warfare capabilities on Hainan Island. The island is China’s southernmost point and is located near the disputed Spratly Islands (Malay: Kepulauan Spratly; Mandarin: Nansha Qundao; Philippines: Kapuluan ng Kalayaan; Vietnamese: Quần đảo Trường Sa), over which China claims sovereignty.
Chinese military expansion is part of a larger trend of rising maritime tensions across the South China Sea. This is most apparent along the Taiwan Strait. During 2021, the PLA flew a record number of warplanes through Taiwan’s air defense identification zone (ADIZ). In response, Taiwan’s military recently conducted drills simulating the interception of Chinese warplanes. “With the very high frequency of Communist planes entering our ADIZ, pilots from our wing are very experienced and have dealt with almost all types of their aircraft,” said Taiwan Maj. Yen Hsiang-sheng.
Recently, Japan and the Philippines have also increased their maritime defense capabilities through the acquisition of new vessels. The South China Morning Post reported that Japan’s Coast Guard will add 10 new patrol vessels by 2030. The decision comes while Chinese ships are increasingly entering waters around a disputed, uninhabited archipelago in the East China Sea. Beijing claims sovereignty over the archipelago, which it refers to as the Diaoyu Islands, but the area is administered by Japan, which refers to the area as the Senkaku Islands. Last year, Japan reported 34 Chinese intrusions in the area, up from 24 during the previous year. Although Japan’s Coast Guard is not a military organization, the Police Official Duties Execution Act permits vessels to fire on foreign vessels to prevent a “heinous crime.” This likely includes an attempt to land at the Senkaku Islands. The United States has repeatedly reaffirmed that the archipelago falls within its mutual defense treaty with Japan.
The Philippines also is attempting to bolster its maritime strength by purchasing two corvettes—worth $556 million—from South Korea. The small warships “will definitely improve the navy’s capability in terms of anti-air warfare, surface warfare, anti-submarine warfare and electronic warfare,” says Armed Forces of the Philippines spokesman Col. Ramon Zagala. Defense expert Max Montero agrees but stipulates that the corvettes primarily maintain defensive capabilities and are unable to conduct open ocean operations. Manila’s decision to acquire the corvettes comes as tensions escalate between China and the Philippines over resource-rich maritime zones within the region.
Western nations continue to deploy vessels to the region. In December, the German frigate Bayern crossed the South China Sea, marking the first German naval deployment to the Indo-Pacific in nearly 20 years. In a published statement about the deployment, Germany’s Foreign Office stated, “Germany’s presence in the South China Sea underscores its continued commitment to freedom of navigation and the preservation of the rules-based international order in the Indo-Pacific, which is coming under pressure in the South China Sea.” Vice Adm. Kay-Achim Schonbach, German chief of navy, commented on the frigate’s deployment during an interview with CNBC’s “Squawk Box Asia,” stating that China’s growing naval power is a cause for concern since Beijing has shown a tendency to disregard international law. “The question is if they fit into the international rules-based order.” Indo-Pacific expert and naval commentator Blake Herzinger, however, saw the Bayern’s deployment as “incongruous and half-hearted”—for example, Schonbach also said publicly that “the ship was selected specifically because it was a bit older and lacked the offensive punch of some newer vessels, to avoid the appearance of provocation.” Herzinger argues that, without a commitment to a full European effort in the Indo-Pacific, German deployments to the region are likely to remain “untethered and limited in their utility—and Beijing, regardless of how many caveats Berlin deploys, may treat them as provocations anyway.”
One such “provocat[ion],” at least according to China, came when the Arleigh Burke-class guided-missile destroyer USS Benfold conducted a freedom of navigation operation (FONOP) in the vicinity of the disputed Paracel Islands (Mandarin: Xisha Qundao; Vietnamese: Quần đảo Hoàng Sa) in the South China Sea on Jan. 20. The U.S. argues that China’s claim of a straight baseline around the island chain violates the U.N. Convention on the Law of the Sea (UNCLOS). The U.S. contends that UNCLOS does not allow a coastal state like the PRC to use straight baselines around islands of an offshore archipelago; rather, only archipelagic states such as the Philippines and Indonesia, which consist entirely of islands, can do so. The 2016 UNCLOS tribunal’s South China Sea award supported that understanding of UNCLOS, but China rejects the entire ruling as “invalid and non-binding.”
The Chinese PLA Navy Southern Command characterized the FONOP as a “trespass” and declared that “[f]acts have fully proven that the US is nothing but a ‘trouble-maker’ and the ‘biggest destroyer’ of the peace and stability in the South China Sea.” The U.S. Navy’s Seventh Fleet—responsible for the Indo-Asia Pacific region—replied that “[t]he PRC’s statement about this mission is false” and called it “the latest in a long string of PRC actions to misrepresent lawful U.S. maritime operations and assert its excessive and illegitimate maritime claims at the expense of its Southeast Asian neighbors in the South China Sea.”
The U.S. Navy also recently deployed two aircraft carrier strike groups—the Carl Vinson and Abraham Lincoln strike groups—to the South China Sea. The strike groups will engage in exercises aimed at strengthening combat readiness, according to a statement from the Navy. Such deployments, however, come with inherent operational risks: On Jan. 24, an F-35C fighter crash landed during a routine flight operation on the USS Carl Vinson, before falling into the South China Sea. The U.S. Navy is now racing to recover the plane, which Lockheed Martin has described as the “world’s only long-range stealth strike fighter designed and built explicitly for Navy carrier operations.”
China is also interested in recovering the F-35. “There’s a huge opportunity for the Chinese if they were able to get a copy of an actual F-35 to reverse-engineer its features, which they can’t do just based on the intelligence gathering they’ve conducted,” said Bryan Clark, a defense expert at the Hudson Institute. Clark believes, however, that China will not directly interfere with U.S. recovery operations for fear of sparking an altercation. Experts also believe, based on experience, that the U.S. will complete the rescue mission within a few weeks. Although F-35s have crashed roughly a half-dozen times, this is only the second F-35 crash involving an aircraft carrier, the first occurring in November on the U.K’s HMS Queen Elizabeth.
U.S. Pitches Soft Power in Southeast Asia, While Japan and Australia Sign Defense Pact
Since November, the U.S. and its allies and partners in the region have taken a number of significant diplomatic and defense-related steps to counter China’s assertiveness in the South China Sea and throughout the Asia Pacific region.
First, U.S. Secretary of State Antony Blinken embarked on a tour of Southeast Asia, beginning with a major speech in Jakarta, Indonesia, on a “A Free and Open Indo-Pacific.” In his Dec. 14, 2021, speech, Blinken made the same point that Vice President Kamala Harris made during her own trip to the region in August: the U.S. “goal of defending the rules-based order is not to keep any country down. … It’s not about a contest between a U.S.-centric region or a China-centric region. The Indo-Pacific is its own region.” Nonetheless, Blinken made sure to note that “there is so much concern, from northeast Asia to southeast Asia, and from the Mekong River to the Pacific Islands, about Beijing’s aggressive actions[,]” including its actions in “claiming open seas as their own.” Blinken reaffirmed the U.S. position that the 2016 UNCLOS tribunal “delivered a unanimous and legally binding decision firmly rejecting unlawful, expansive South China Sea maritime claims as being inconsistent with international law.”
Blinken’s real focus, however, was on “strengthen[ing] relations with Indo-Pacific nations through billions of dollars in American investment and aid and, in doing so, counter[ing] Beijing’s regional pull.” This soft-power push comes as some observers, including Singapore’s Deputy Prime Minister Heng Swee Keat, worry that the U.S. does not yet have a comprehensive economic framework for the region. Many are skeptical of Blinken’s commitments, given both the United States’ 2017 withdrawal from the Trans-Pacific Partnership trade agreement and the fact that China’s $685 billion in two-way trade in Southeast Asia is more than double that of the U.S. Highlighting the more than 300 million coronavirus vaccines the U.S. has donated to the region, Blinken asserted that “the region has told us loud and clear that it wants us to do more. We intend to meet that call.” As part of that promise, the Biden administration has begun crafting what Blinken called a “comprehensive Indo-Pacific economic framework … around trade and the digital economy, technology, resilient supply chains, decarbonization and clean energy, infrastructure, worker standards, and other areas of shared interest.”
Commentators largely agreed that Blinken’s Jakarta address was “frustratingly vague as to its specifics” and expressed skepticism about the sustainability of Blinken’s strategy, given that “[a]nother Trump or Trump-like presidency, something which is not beyond the realm of possibility, would mean America backtracking on its commitments.” The Chinese government-run newspaper Global Times panned Blinken’s speech, and the Chinese Foreign Ministry spokesman called Blinken’s speech “self-contradictory” and derided what he called the United States’ “incite[ment of] division, estrangement and confrontation.”
Second, the U.S., Japan and Australia took steps, independently and in conjunction, to increase defense cooperation with an eye to China’s increasingly aggressive behavior toward Taiwan. In recent days, the U.S. House of Representatives made progress on a $250 billion bill designed to better position America to compete with China (its counterpart measure passed the Senate in 2021). While much of the focus in the media has been on the bill’s semiconductor provisions, if passed it would also direct the the secretary of state to upgrade the designation of Taiwan’s de facto embassy in D.C. from “the Taipei Economic and Cultural Representative Office, to the ‘Taiwan Representative Office in the United States.’” This move comes on the heels of a bipartisan U.S. congressional delegation visit to Taiwan, which, according to Rep. Elissa Slotkin, prompted a “blunt message from the Chinese Embassy, telling [the delegation] to call off the trip.”
Japan, meanwhile, has approved record defense spending, signed a China-focused defense pact with Australia, and held “2+2” discussions between the Japanese and U.S. defense and foreign ministers. The Japanese cabinet boosted defense spending to $53 billion, equivalent to 1.14 percent of Japan’s GDP, breaking norms of both a 1 percent cap and 6 trillion Yen for the first time. In justifying the spending, the Japanese government said that “the security environment surrounding Japan is increasing in severity at an unprecedented pace.” The money will be spent largely “to speed up deployment of patrol aircraft, helicopters and personnel defending the island chain that runs from southern Japan toward Taiwan.” The defense spending boost comes shortly after reports of planning for a joint U.S.-Japanese war operation in the event of a “Taiwan emergency.” The plan calls for U.S. Marines to set up bases on the Nansei island chain, stretching from Kyushu to Taiwan, while Japan provides logistical support. Hawkish Chinese professor and government adviser Jin Canrong recently told NikkeiAsia that he sees “armed unification” of Taiwan as likely by 2027 as “China already has the capability to unify Taiwan by force within one week” and “the PLA can defeat any U.S. force within 1,000 nautical miles of the coastline.”
In early January, the two allies continued their planning with a virtual “2+2” meeting among U.S. Secretary of Defense Lloyd Austin, Secretary of State Blinken, Japanese Minister for Foreign Affairs Yoshimasa Hayashi and Minister of Defense Nobuo Kishi. At the meeting, the allies discussed stockpiling munitions and shared use of runaways in the Nansei island chain, which could “quickly be deployed and replenished in Taiwan’s immediate neighborhood.” Such a stockpile of precision-guided munitions is widely viewed as essential to a potential Taiwan emergency in order “to [break] China’s anti-access/area denial (A2/AD) strategy, which seeks to keep American and allied forces out of the East and South China seas.” The ministers also discussed plans to “counter emerging threats, including hypersonics and space-based capabilities.” Most significantly, the U.S. and Japanese governments expressed shared “concerns that ongoing efforts by China to undermine the rules-based order present political, economic, military, and technological challenges to the region and the world. They resolved to work together to deter and, if necessary, respond to destabilizing activities in the region.” In response to the 2+2 meeting’s focus on Taiwan emergency preparations, the Chinese government-run newspaper Global Times warned that “[i]t will not take many rounds to crush Taiwan secessionists and drag down external intervention forces.”
Meanwhile, Japan was also busy signing a new defense pact with Australia, widely seen as a response to China. On Jan. 6, Prime Ministers Scott Morrison and Fumio Kishida signed a reciprocal access agreement (RAA) that will “pave the way for much closer defense relations between the two countries, as Japanese and Australian forces can deploy from each other’s bases and establish common protocols.” This initial agreement, to be followed by a later agreement fleshing out more details, “is the first of its kind Japan has struck with another country.” The agreement builds on both the recently announced AUKUS deal and cooperation among the “Quad”—the informal strategic consultation group of Australia, India, Japan and the United States. U.S. National Security Adviser Jake Sullivan has referred to these and other pacts as a “latticework of alliances” that is key to U.S. strategy in countering China. The Chinese Foreign Ministry responded to both the 2+2 meeting and the Japan-Australia RAA by arguing that “the US, Japan and Australia are ganging up to form a clique targeting other countries in practice and flexing muscles for military intimidation. This runs counter to the trend of peace and development in the region, and contradicts their self-claimed ‘opposition to pressure and coercion.’” Quoting a Chinese military expert, the Global Times noted that Japan and Australia “should know that if they touch China’s bottom line—either on the question of the island of Taiwan or bring harm to China’s territory—countermeasures will follow.”
Finally, on Jan. 22, President Biden and Prime Minister Kishida met virtually in a “full display” of U.S.-Japan solidarity. According to the White House, President Biden “welcomed” Japan’s increased defense spending and intention to revise its national security strategy, and the two leaders held a “very in-depth discussion on sharing perspectives on China, a desire to promote and defend a free and open Indo-Pacific” and “concerns about some of the steps that China had taken across the board in terms of intimidating neighbors.” The White House statement also noted that the “two leaders resolved to push back against the People’s Republic of China (PRC)’s attempts to change the status quo in the East China Sea and South China Sea; [and] underscored the importance of peace and stability across the Taiwan Strait and the peaceful resolution of cross-Strait issues …. The President resolutely affirmed that Article V of the Mutual Security Treaty applies to the Senkaku Islands, and affirmed the United States’ unwavering commitment to the defense of Japan, using its full range of capabilities.” The Chinese Foreign Ministry spokesman said in response that Biden and Kishida had “once again wantonly discredited and attacked China and grossly interfered in China’s internal affairs, seriously violating international law and basic norms governing international relations.” He also stated that “the US and Japan have clung to the Cold War mentality, incited ideological antagonism and confrontation between countries, manipulated the internal affairs of other countries in the name of democracy and freedom, and bullied and coerced other countries under the pretext of rules.” The Global Times described the meeting as a U.S. “test” of “Tokyo’s loyalty to Washington under the new Japanese leader,” and quoted Chinese security experts as characterizing the meeting as “‘a kind of ‘pilgrimage,’ as Japan sees the US as its protector.”
Legal Maneuvering in the South China Sea
“Limit of the Seas,” a U.S. State Department report published in January, provides a legal argument for disputing China’s claims to sovereignty in the South China Sea. The publication finds that Beijing’s claims have “no legal basis” and are inconsistent with the UNCLOS. During an online briefing, Constance Arvis, the State Department’s deputy assistant secretary in the Bureau of Oceans and International Environmental and Scientific Affairs, said the report “can provide information our allies and partners can use” against an increasingly assertive China.
The report organizes China’s claims into four main categories—sovereignty claims over maritime features, straight baselines, maritime zones and historic rights—and disputes the legality of each category individually.
It comes as Beijing continues to expand its domestic legal authority to enforce claims of sovereignty in the South China Sea. On Dec. 23, the Chinese government published a new regulation to fine foreign fishermen in China’s claimed “jurisdictional waters.” Earlier in 2021, China’s National People’s Congress also passed the Coast Guard Law, which allows the Chinese Coast Guard to engage in more aggressive actions, such as demolishing structures on reefs within China’s claimed jurisdiction.
While commenting on the State Department report, Jung Pak, deputy assistant secretary for multilateral affairs, Bureau of East Asian and Pacific Affairs, said that China’s use of naval militia to “harass and intimidate” other nations “gravely undermines the rule of law.” In response to growing international concern over Chinese maritime aggression, China’s foreign minister, Wang Yi, said that China will not “bully” it’s smaller neighbors.
Looking ahead, the Quad plans to meet in mid-February in Australia, their first in-person meeting since October 2020, ahead of a spring summit in Japan among the Quad nations’ leaders. Additionally, newly confirmed U.S. Ambassador to Japan Rahm Emanual recently arrived in Japan and plans to meet with the Japanese prime minister in early February. Emanuel takes the post having recently characterized China as “not a good neighbor,” which he said puts the U.S.-Japanese relationship “at a critical point, at a critical juncture, to really advance this friendship, alliance, and the value system that brings the two people and two democracies together to advance us on a set of value systems.”
The CSIS Asia Maritime Transparency Initiative (AMTI) recently published a “stocktaking” of how various nations define the often-used term “maritime security.” Experts convened by the S. Rajaratnam School of International Studies “surveyed national policy documents and policymaker discourse to assess how maritime security is defined, used, and conceptualized in seven key Southeast Asian coastal states (the Philippines, Vietnam, Brunei, Malaysia, Indonesia, Singapore, and Thailand), ASEAN as a multinational institution, and the Quad members (Australia, Japan, India, and the United States).” The 14 experts’ articles are all available on the AMTI website.
Two authors—Kerry Brown and Elizabeth Economy—have books out that examine contemporary Chinese foreign policy. Brown’s “China’s World” is an “overarching [review] of Chinese foreign policy, both in historic terms and in terms of China’s involvement in the whole world, rather than a particular region or part.” Brown seeks to “make views of China a bit more accurate and holistic.” Meanwhile, Economy’s “The World According to China” “examines not only China’s role in the world today, but its desired role for the future—and Beijing’s plan to remake the world system to achieve its goal.”
A new report, entitled “Sink or Swim: The Future of Fisheries in the East and South China Seas,” “says that under a scenario in which global temperatures rise by two-degrees Celsius by 2050 from current levels, the South China Sea is ‘likely to experience significant declines in key commercial fish and invertebrate species, placing many regional fishing economies at risk of devastating failure.’” Such a collapse raises the prospect of armed conflict between nations whose fisheries are affected, though other scholars argue that the problem is the reverse: “[I]t is disputes and lawlessness that put pressure on fish stocks.” The “Sink or Swim” report calls it “crucial” that actions be “taken on … three main themes: initiating regional dialogues, addressing feed-grade fishing practices, and integrating climate change and fisheries management policies.” Absent such actions, the report predicts “devastating social, economic, and ecological consequences for Asia’s marine ecosystems and the billions of people who depend on it.”
In NikkeiAsia, James Crabtree—the executive director of IISS-Asia in Singapore and author of “The Billionaire Raj”—–argues that “the creation of a new wave of new bilateral pacts between Asian nations anxious about China is unlikely to deter Beijing on its own, especially if it is not matched by greater focus and military spending from the U.S.” He sees the rise in defense pacts that exclude the U.S. as a result of “worry about the long-term reliability of the U.S. as a partner.” He also contends that military cooperation treaties, such as the Japan-Australia RAA, do not automatically sync interests or priorities between nations. “To take [U.S. National Security Adviser] Jake Sullivan’s phrase,” he concludes, “building a ‘latticework’ of ties between U.S. partners will only go so far if Washington is not ready to do more itself.”
Finally, in AMTI, Renato Cruz De Castro writes that while Southeast Asia’s response to AUKUS has been generally mixed, the Philippines—from President Rodrigo Duterte down—has welcomed and supported the agreement. He argues that this support “indicates the growing dominance of the Philippine national security community within the cabinet as it advocates support for the U.S. alliance system as a means of balancing China’s expansionist designs in the South China Sea.”