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Development and Settlement of Disputes

Strategic Adaptation: Why a New U.S. Strategy in the South China Sea Disputes is Needed

Strategic Adaptation: Why a New U.S. Strategy in the South China Sea Disputes is Needed

Truong-Minh Vu and Nghiem Anh Thao

The Indo-Pacific Review

Map of the South China Sea produced by Clive Schofield and Andi Arsana, (ANCORS) showing claims in the South China Sea. The map is reproduced with permission from the January 2013 issue of the American Journal of International Law © 2013 American Society of International Law. All rights reserved.

Map of the South China Sea produced by Clive Schofield and Andi Arsana, (ANCORS) showing claims in the South China Sea. Published in the January 2013 issue of the American Journal of International Law © 2013 American Society of International Law.

“In order to secure its interests in the Asia-Pacific and particularly in the South China Sea, the United States is in need of redefining a new regional strategy towards the South China Sea dispute.”

At the July 2010 ASEAN Regional Forum, U.S. Secretary of State Hillary Clinton proclaimed South China Sea as a U.S. “national interest”. Since then, this viewpoint has been reiterated several times and proven by an actual increase of U.S. involvement in the South China Sea. However, there is a discrepancy between the actions and the words of the United States, specifically in regards to its aims and policy outcomes.

Recent developments in the South China Sea dispute since 2012—including the Scarborough Shoal standoff between the Philippines and China and the Chinese decision to move the giant oil rig Haiyang Shiyou (HYSY) 981 into Vietnam’s proclaimed Exclusive Economic Zone (EEZ) off the disputed Paracel Islands, have shown that while China has recently conducted more pro-active and assertive moves, the United States still seems to be searching for an appropriate approach.

In order to secure its interests in the Asia-Pacific and particularly in the South China Sea, the United States is in need of redefining a new regional strategy towards the South China Sea dispute. The security order in the region is in flux, and the time is right for a fundamental reassessment of key trends as well as U.S. policies in the region under new circumstances.

Four Contradictory U.S. Priorities

In all official (and semi-official) documents, American interests and standpoints in the South China Sea dispute can be covered in four main principles:

To promote regional peace, prosperity, and security;

To uphold neutrality in the legal merits of overlapping sovereignty claims;

To maintain freedom of navigation; and

To encourage peaceful settlement among the claimants with respect given the principles of international law.

Since 2011, U.S. strategies in the South China Sea can be categorized into five general modes of engagement. First, it is to oppose, even threaten a response to China’s aggressive behaviors in multilateral forums. Second, is to urge parties to find a peaceful conflict resolution mechanism based on international law (e.g., to support the formation of a full binding Code of Conduct (COC) and to call for strict compliance with the 1982 UN Convention on the Law of the Sea (UNCLOS). Third, it aims to assist regional allies by providing warships and military facilities for naval defense. Fourth, it supports cooperation amongst U.S. allies and also potential partners. Fifth, it seeks to communicate with China (regarding not only the South China Sea but also the issues associated with the East China Sea) about the costs of their expansionist policy.

Due to changing circumstances, the above mentioned approaches do not seem the most efficient in serving U.S. interests. Nonetheless, China’s assertiveness has bound the United States to a situation in which it has no other choice but to redefine and rethink its approaches. This process, in fact, is directed by four contradictory priorities.

First, the United States is stuck between focusing on upholding freedom of navigation or remaining neutral in sovereignty dispute issues. China’s increasingly assertive behavior since 2012 has pointed out that these two issues faced by the United States are hardly unrelated. The oilrig HYSY-981, for instance, is likely to be used as a “mobile territory” to exert actual Chinese sovereignty over the Paracel archipelago and the surrounding area. By occupying Triton Island and labeling it as a qualified island for its own EEZ according to Article 121 of UNCLOS, China has employed a new way to expand its maritime claims. Furthermore, photographic evidence demonstrates China’s recent actions to physically expand its territories (reefs, atolls, etc.) by establishing artificial islands for the purposes of military control in Chinese-occupied Johnson South Reef and Fiery Cross Reef. Once the South China Sea is in the palm of its hand, China would make use of the EEZ claim and its military forces to contain the involvement of U.S. military, which subsequently may threaten American freedom of navigation and communication in the region.

Secondly, the United States should safeguard its regional alliances (which will strengthen the American post-1945 alliance system), but simultaneously not provoke harmful damage to the Sino-American strategic partnership (restraining, especially from any occurrence of armed conflict). The Scarborough Shoal clash in 2012 shows these two priorities can only be achieved in the case China maintains its policy of “taoguangyanghui” (meaning “not to show off one’s capability but to keep a low profile”), a concept partially or even totally denied by recent actions. Since 2011, China has been adopting both diplomatic and military measures to affirm its sovereignty claims, which has led to widespread concerns from neighboring countries, especially the Philippines – one of America’s regional allies.

Thirdly, the United States has consistently requested related parties to reach a final resolution based on international law, in particular the 1982 UNCLOS. However, the United States itself has not ratified the treaty despite the fact that the Obama administration has repeatedly demonstrated its support. This situation needs to be contextualized in light of the American paradoxical interests. The United States, on the one hand, desires to push all claimants into a rules-based order. On the other hand, it does not expect these regulations to limit its interests and the use of its power. Since UNCLOS encompasses a sphere involving a wide range of actors, different interest groups exists within the United States who are vehemently lobbying through both the legislative and executive branch to oppose American endorsement of the treaty.

Fourthly, although the United States wants to maintain U.S. hegemony in the Asia-Pacific, it is at the same time challenged by domestic woes, including defense budget cuts, unemployment, and a bulging federal government debt. Consequently, the United States is in need of a policy which does not heavily hinge on hard power and which does not require massive defense expenditures, but can be employed through other channels such as diplomacy and international law. This might be considered the most important factor in explaining the ambiguous response of the United States toward China’s recent escalation of aggressive behaviors. Recent debates among American scholars on Washington’s upcoming grand strategy also emphasize this notion. The “deep engagement” group supports the United States in maintaining its military commitments to guarantee U.S. global supremacy. On the contrary, the school of “offshore balancer” advocates the narrowing of U.S. security concerns, reducing military expenditures, and sharing international responsibilities and costs with other major powers.

The Need for a More Active Policy: The Two-Pronged Strategies

Because the United States is being challenged as a “Pacific power”, it needs to adopt a strategy that focuses on long-term objectives. China has enmeshed the United States into a tough game beset with contradictory interests. However, given that context, the credibility of a measure stressing rules and law rather than weapons and confrontation ought to be vigorously reinforced. The United States is required to adopt stronger policies in the South China Sea disputes, whose objectives aim to: (i) force China to settle disputes peacefully in accordance with international laws and encouraging other countries to do the same; and (ii) deter China from using military force or coercion to settle the disputes. Therefore, the United States needs to abandon its neutrality to embrace a more proactive stance, explicitly supporting the rival blocs in territorial disputes with China. The United States should accordingly give priority to the following two policy options.

Legal containment. The United States is the primary supporter of international law. As a result, it should express a determined standpoint to establish a rules-based order in the South China Sea. This can be manifested through two practices. First, Washington should prioritize ratification of the 1982 UNCLOS. President Obama voiced this spirit during his commencement speech at the U.S. Military Academy Graduation Ceremony at West Point on May 28 2014: “We can’t try to resolve problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is ratified by our United States Senate, despite the fact that our top military leaders say the treaty advances our national security”. The treaty not only functions as a legal framework and as moral credibility, but also as a “strategic weapon” of U.S. soft power in the South China Sea.

Second and more importantly, the United States needs to exhort the establishment of a juridical alliance that includes Japan, Vietnam, and the Philippines – nations currently engaged in territorial disputes with China. This alliance would serve the purpose of advocating and supporting, both physically and verbally, involved parties to bring territorial issues to international courts or to resolve conflicts according to international laws and within multilateral institutions.

In a 2012 op-ed published in The New York Times, for the very first time, Japan’s Ministry of Foreign Affairs suggested the possibility of bringing the Senkaku/Diaoyu dispute to the International Court of Justice. This incident was a significant remark for the emerging orientation of “prioritizing rules and laws” in conflict resolution, and also initiated the “set an example” policy of major powers, which started with Japan (although Japan was holding the upper hand by seizing actual control in the disputed area). In 2013, the Philippines was the first South East Asian country to request the International Tribunal for the Law of the Sea (ITLOS) to reconsider China’s sovereignty claims over the majority of the South China Sea. The Vietnamese government has recently instructed relevant governmental bodies to prepare legal documents for the purpose of taking legal proceedings against China’s oil rig HYSY 981 deployment in Vietnam’s Exclusive Economic Zone to the international court.

From a physical standpoint, China considers such a juridical alliance as a “legal containment” to restrict its territorial expansion. The implementation of this alliance will not only provide substantial assistance to littoral states such as the Philippines and Vietnam who are seeking to reach a conflict resolution via legislative means, but also create a unanimous basis for other disputed matters in the foreseeable future. In addition, the “juridical alliance” established on the grounds of the pursuit of peace and conformity with international law may act as a strategic tool for ASEAN countries to protect their territorial sovereignty. The road to international order, in which the relations among parties revolve around not only cooperation, but also conflict settlement, depends on the policies determined by relevant parties. They need to decide between two main tracks: favoring the use of force or favoring international law.

China’s current claims regarding territorial disputes fail to make grounds according to internationally recognized standards. In contrast to that, there are six crucial points that require consensus among allied countries: (i) denying the use of forces in conflict resolution, (ii) seeking unanimity on the utility of international arbitration, (iii) pursuing mutual understanding on the freedom of navigation within the EEZ in the South China Sea, including military surveys, (iv) seeking unanimity on the disputed land features in the South China Sea, (v) encouraging the littoral states to release and explain their territorial claims according to the 1982 UNCLOS (especially to clarify China’s nine-dotted line map) and (vi) seeking unanimity on the construction of a multilateral maritime domain awareness architecture for the South China Sea, which – as one observer suggested – would supervise and provide transparent information on maritime activities in the region.

Offshore control. This strategy does not aim to seek decisive dominance over China by traditional military means. Instead, the purpose is to shape regional disputes into a rules-based order or to form a negotiation platform for related parties. If a conflict between the United States and China were to occur in Asia, China will foreseeably hold the geo-strategic advantage in the battlefield since the United States might face considerable challenges such as the transporting of troops, military facilities, and the ability to supply goods from the mainland and from a limited number of military bases in the region. Therefore, given its role as a long-distance power, the United States needs a strategy of deterrence, forcing China to sit in negotiations and comply with international laws as well as pacifying tensions.

We hereby wish to apply the concept of “Offshore Control” (OC) to describe a prospective U.S. strategy in the South China Sea. The logic of OC is to enforce a distant lockage on China. It entails building up a set of concentric rings that deny China’s use of the sea inside the “first island chain” and dominate the air and maritime space outside the island chain. As indicated by Professor T.X. Hammes, OC does not seek to achieve a Chinese surrender by military muscle, but to notify China that accomplishments gained by armed conflicts are ultimately counterproductive. With regards to U.S. allies, OC focuses on keeping them from direct confrontation with China, and at the same time enhancing their Anti-Access Area-Denial (A2AD) capacity. The ultimate intent of this approach is to weaken Chinese geo-strategic advantages, and to simultaneously reinforce the confidence of U.S. allies on what actual actions the United States is ready to take to protect regional security in its role as a guarantor of stability.

This strategy applies especially well to the U.S. efforts to deter possible Chinese military actions. The United States would be able to place a priority on preserving both strategic and operational freedom of navigation by going from “coordinating partner” to “managing partner” in the South China Sea. By providing material assistance to enhance the naval capability of the Philippines and by carrying out military exercises with Southeast Asian countries, the United States would appear to remain committed to guarding its own broader interests, which includes avoiding direct confrontation with China. The United States also serves as a deterrent force to counter China’s asymmetric strategy. In dealings with Vietnam, the United States should consider the trade-off between strategic purposes and human rights issues. Arms sales to Vietnam and the establishment of the new U.S.–Vietnam strategic partnership could wean Vietnam from strong solidarity with China, and enable Hanoi to impose considerable costs on China.

Washington will have to think creatively about how to improve the establishment of an “allies among allies” network including Japan, the Philippines, Malaysia, and Vietnam. After rewriting Article 9 of its “Peace Constitution”, Japan’s path toward collective self-defense is an important step in fostering Japanese participation to guarantee security in the South China Sea. The United States can similarly assist regional states through providing aid in maritime surveillance and intelligence exchange. The United States would then play its role in the rear, in other words, “leading from behind” – a notion introduced during the Libyan war by the Obama administration. From there, the United States can foster military cooperation with other countries to prevent maritime security threats and as predicted, this process has sped up over time.

The South China Sea is only a small piece of the whole strategic picture, which is rooted in regional and global power shifts. It is reflected in the accommodated rise of China and the ongoing negotiation of a new regional order between China and the United States. In the wake of an emerging international order, power constituents in terms of resources such as economic and military capabilities might not be the only explanatory variables shaping outcomes. Other elements such as recognition and acceptance can generate long-lasting social control and sustainable leadership.

By forming the “rule of game” relied upon in international law and norms, the United States has created unanimity to carry out military engagement in the event U.S. national security – or that of its allies – or vital interests interest are threatened. On the other hand, this is the spirit of a leader who acknowledges its power and uses it timely, while balancing interests of related parties under the surveillance and consensus of other members in the community. Power is a tool, not a goal. And leadership should be achieved by willful recognition of other nations’ interests, rather than muscle flexing or clinging onto self-delusion.

Mr. Truong-Minh Vu is a foreign affairs and political analyst, focusing on the Southeast Asian region, and a lecturer at the University of Social Sciences and Humanities, Ho Chi Minh City, Vietnam. Mr. Nghiem Anh Thao is a graduate student in Political Science at VU University Amsterdam/Vrije Universiteit Amsterdam, the Netherlands. The authors would like to thank T. X. Hammes, Alexander Vuving, and Nguyen T. Trung for their valuable comments and suggestions.

The article was originally published on The Indo-Pacific Review at http://www.indopacificreview.com/strategic-adaptation-new-u-s-strategy-south-china-sea-disputes-needed. Republished with permission.

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