January 20, 2017

By Mark J. Valencia

In the run-up to Donald Trump’s inauguration as President of the United States, advocates of a more aggressive US foreign policy towards China unleashed a barrage of hawkish commentaries and proposals. Most comments focused on China’s behavior in the South China Sea. 

This deluge was stimulated by recent statements by Trump and his nominees for Secretary of State Rex Tillerson and Secretary of Defense James Mattis. Trump’s actions and words questioned the US-China fundamental agreement on a “One China” policy. Tillerson declared that China’s access to the South China Sea features it has built upon will not be “allowed,” while Mattis opined that China’s behavior in the South China Sea was part of “a mounting assault on global stability.” In his view, China is challenging the US-built and -maintained regional order. Meanwhile, former UN Ambassador John Bolton, once considered by Trump for Secretary of State and possibly still a Trump advisor, suggested that the US marines stationed in Okinawa be transferred to Taiwan to “enhance the US’s East Asia military posture.” 
   

These statements by incoming government leaders and influence peddlers provided an opportunity for America’s China hawks to promote their views. Gordon Chang, a long-time critic of the Chinese Communist Party, said the comments were “striking” and that he hoped they indicated a fundamental change in American foreign policy toward China; “We’ve empowered the worst elements of the Chinese political system by showing them that aggression works.” As a “solution” he called for stronger deterrence. Writing before these latest statements, Ross Babbage of the Center for Strategic and Budgetary Assessments said the US, Japan, and Australia must “thwart Beijing’s expansionism in the South China Sea and deter further Chinese adventurism.” 

Focusing on US tactics, two academics from the Naval War College suggested that America should revive its past “derring-do” and “recognize that close quarters encounters, cat and mouse games between submarines and opposing fleets, and even deliberate collisions could become routine elements of the US China rivalry.” 

Perhaps the new wave of bellicosity was best exemplified in the essay by James Kraska of the Naval War College that attempted to provide a legal rationale for a “blockade.” His essay was reminiscent of the Bush 43 era legal memos justifying torture — convoluted, conniving and dangerous. As such it deserves a detailed response.   

Kraska argues that the US can lawfully “challenge China’s rights to access its artificial islands (sic) as a lawful countermeasure in international law to induce China to comply with its obligations of the Law of the Sea Convention and customary international law.” In particular, Kraska says that “China does not respect UNCLOS rules governing … high seas freedom of navigation and overflight of military vessels and aircraft in its EEZ.” But he neglects to mention that the US is not a party to UNCLOS (The 1982 UN Convention on the Law of the Sea).

As a non-party to this “package deal,” the US has little credibility and standing in urging adherence to particular parts of it and unilaterally trying to enforce them. Moreover, it is not clear that China is violating the US’ freedom of navigation because there is serious disagreement regarding the meaning of key relevant terms in UNCLOS. Such terms include “other internationally lawful uses of the sea,” “due regard,” “peaceful use/purpose,” “marine scientific research” and “abuse of rights.” Indeed, the meanings of these terms are evolving as are relevant customary law with state practice.

According to Kraska, such countermeasures flow from the customary international law of state responsibility as reflected in the International Law Commission’s “Article on State Responsibility.” But this is at best “soft” law and certainly not agreed by all states. Also, that Article states that “countermeasures must be proportionate … and not involve violation of preemptory norms,” presumably including freedom of navigation. Kraska argues that such action may be a lawful measure short of coercion.”  But how can the US deny China’s access to its claimed features “short of coercion” — direct or indirect? 

Kraska urges the US to withdraw recognition of China’s rights under UNCLOS to navigate freely throughout the South China Sea to the extent that Beijing does not respect reciprocal rights. Should this policy apply only to China or throughout the world? Just in Asia alone many countries have legal regimes that limit US military activities in their waters, including Malaysia, India, Indonesia, Thailand and Vietnam. And as Sourabh Gupta of the Institute for China-America Studies poses: “What if other states enact a similar policy, i.e., they agree to respect US claims only if the US respects their claims?” 

One prominent China analyst said that “the theme of clash of civilizations was becoming increasingly popular in Chinese circles.”    

Kraska also states that China’s “interference with US warships and military aircraft in the South China Sea constitutes a breach of its legal obligations under UNCLOS and customary international law.”  But if the US follows Kraska’s advice, it would be breaching the same laws and even worse, the UN Charter. Already some US activities in China’s EEZ may be in violation of UNCLOS. 

First of all, naval blockades are acts of war under international law. A country can only legally use a blockade if it is acting in individual or collective self-defense — the standard requirements for going to war — or if the UN Security Council has proclaimed the action necessary to maintain international peace. 

Second, China argues that it is not challenging US freedom of navigation itself but US abuse of this right in its EEZ. The activities of the US’s intelligence, surveillance, and reconnaissance assets include active “tickling” of China’s coastal defenses to provoke and observe a response, interference with shore to ship and submarine communications, “preparation of the battlefield” using legal subterfuge to evade the consent regime, and tracking of China’s new nuclear submarines for potential targeting as they enter and exit their bases. In China’s view, these are not passive intelligence collection activities commonly undertaken and usually tolerated by most states, nor are they uses of the ocean for peaceful purposes as required by UNCLOS. Rather they are intrusive and controversial practices that China regards as a threat of use of force. A threat of use of force would be a violation of the UN Charter, let alone UNCLOS.  

Third, some analysts argue that the Charter’s prohibition on threat of use of force includes the demonstrated intent to use or indirectly use armed force. The very deployment of warships for a blockade might be considered a threat to use force. For example, Japan declared that Chinese warships, by locking in their fire-control radar on Japan’s vessels, may have violated the Charter. Moreover, the Charter and subsequent legal developments in the UN system have not taken into account highly advanced technologies, in particular the latest intensive and intrusive electronic warfare capabilities. 

According to Kraska, the US would also be entitled to use force in self-defense if China were to try to impede the application of these countermeasures. This statement ignores the predicate of the US establishing a blockade in the first place, which many argue would be an act of war. If it is, then China is entitled to self-defense. In sum, his essay is blatantly biased and should not be taken seriously by policymakers. 

Some have argued that these comments by incoming US government leaders should not be taken literally. For example, according to Reuters, a Trump transition advisor said that Tillerson did not mean to suggest the new administration would impose a naval blockade. Michael Green, a former Director for Asia at the National Security Council and now at the Center for Strategic and International Studies said, “What I think he (Tillerson) meant was that we will not let the Chinese use these new airbases on those reclaimed islands to establish dominance.”  

But none of these incoming leaders’ statements — including that of Tillerson — have been clarified or “walked-back” and another official authorized to speak on behalf of the transition team said Tillerson “did not misspeak.” That person also said various military enhancements were under consideration, such as basing a second aircraft carrier in the region; deploying more destroyers, attack submarines and missile defense batteries; expanding or adding new bases in Japan and Australia; and installing “air force long-range strike assets” in South Korea. 

Even China’s America experts did not want to believe Tillerson’s words. The China Daily said in an editorial that “such remarks are not worth taking seriously because they are a mish-mash of naivety, shortsightedness, worn-out prejudices, and unrealistic political fantasies Should he act on them in the real world, it would be disastrous.”  

Regardless of the exact meaning of the incoming officials’ statements, the damage to the US-China relationship has already been done. One prominent China analyst said that “the theme of clash of civilizations was becoming increasingly popular in Chinese circles.” Worse, this renewed US belligerence comes at a bad time for China’s President Xi Jinping. He hopes to be “re-elected” in October 2017 and will be especially inflexible on these issues in order to ward off criticism from hardliners in the Communist Party. Already the Chinese military is calling for China to “be prepared to throw punches” regarding increasing US intelligence, surveillance, and reconnaissance probes from the sea.  

As Hugh White puts it, these words by Trump and Tillerson damage their credibility by making threats they most likely cannot or will not follow through. If so, they would have made “America look weak, and China look strong.” Then they may be “forced” to take actions that could easily lead to confrontation. Moreover, these statements have unsettled US friends and allies in Asia, particularly those who fear getting caught between two “fighting” elephants. Most worrying of all, given the context of the pseudo-Thucydian trap (a supposedly “inevitable” conflict between a status-quo and a rising power), these statements indicate that these incoming officials overestimate US power and resolve, and underestimate those of China. That is how wars start. 

Mark J. Valencia is adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link:

http://www.ippreview.com/index.php/Home/Blog/single/id/334.html 

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