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Proposals for US action in S China Sea should worry everyone

2022-08-24 11:32:51       source:NISCSS

July 24, 2022

China’s “gray zone” tactics in the South China Sea have prompted some very perturbing proposals for US counteractions there. The worry is that these proposals may reflect actual thinking in some quarters of the US Coast Guard and military establishments. If so, senior officers should take note and scotch these dangerous ideas before they gain currency.


One proposal in the US Naval Institute (USNI) Proceedings recommends more US “naval statecraft” in the South China Sea. “Naval statecraft” as used here is just another name for old-fashioned “gunboat diplomacy,” something the region does not need or want more of.


The USNI piece advocates a counter-effort against China’s “gray zone” tactics in the South China Sea that include its use of maritime militia, fishing boats and Coast Guard to advance its claims and interests there. But the article does not clarify the direct threat to US national-security interests posed by these activities.


The US often cites China’s threat to freedom of navigation as being against its national-security interests.


After its July 16 freedom-of-navigation operation (FONOP) challenging China’s prior-permission regime for warships to enter its territorial sea, the US Navy said “unlawful and sweeping maritime claims in the South China Sea pose a serious threat to free trade and unimpeded commerce.” But China has not threatened commercial freedom of navigation and is highly unlikely to do so in peacetime.


The US conflates freedom of navigation for commercial vessels with that for its warships and warplanes to gather intelligence and threaten China’s defenses. When China tries to protect itself from what it views as threats to its own national security, the US then raises the “freedom of navigation” canard.


In this particular instance, a restriction on the activities of warships within China’s 12-nautical-mile territorial sea does not threaten commercial navigation.


The US also cites China’s illegal claims as undermining the “rules-based international order.” But the real US concern is that China is challenging its leadership, interpretation and enforcement of the “rules-based international order,” not the entire “order” itself.


Moreover, this is hypocritical. As a non-party to the UN Convention on the Law of the Sea (UNCLOS), the US is itself undermining the “rules-based order” and its leadership thereof. Indeed, it has little legitimacy or credibility interpreting key UNCLOS provisions regarding freedom of navigation to its advantage.


 A fundamental assumption of this proposal is that a greater US naval presence would be welcomed in the region. Given that claims by all littoral members of the Association of Southeast Asian Nations except Singapore and Brunei have been targets of US Navy FONOPs, it is safe to say that they already do not approve of its gunboat diplomacy – at least against themselves.


They also fear that it will be destabilizing. Even America’s stalwart strategic partner Singapore has reservations.


After a near-collision between a Chinese warship and a US warship undertaking a FONOP, its Defense Minister Ng Eng Hen said, “Some of the [South China Sea] incidents are from assertion of principles, but we recognize that the price of any physical incident is one that is too high and unnecessary to either assert or prove your position.”

More militarism will only make the situation worse – for all concerned.


The USNI proposal is both alarming and politically naive. But even more so is one by the Center for International Maritime Security (CIMSEC) suggesting that the US use its Coast  Guard’s Deployable Specialized Forces (DFS) to counter China’s “gray zone” activities.


It argues that the US “must position itself between the [Communist Party of China] and the South China Sea nations by establishing a Maritime Counterinsurgency” and use the DSF to do so. It says warships can be “pre-positioned within the theater of operation.”


CIMSEC recognizes that implementing this proposal would require “expanded Indo-Pacific partnerships and alliances” and then recommends using “nations like Taiwan as a model for empowering South China Sea nations. Taiwan, Australia, Japan and India can be chief enablers in this counterinsurgency strategy.”


China’s response to these countries implementing such a strategy would be fierce – especially toward Taiwan – and already China-stressed Australia, constitutionally limited Japan and non-aligned India are unlikely to participate.


But the piece that takes the cake is one by Peter C Combe II, a lieutenant-colonel in the Judge Advocate Division at US Marine Headquarters. Although his views are “his own,” given his position, they obviously have an important audience.


The article lays out the legal strategy for implementing the counterinsurgency proposal. It notes that it is the US position that some cyberspace attacks can be equivalent to an armed attack and justify the use of force in self-defense.

Although China disagrees with this concept, the US may use a Chinese cyberattack on a US military asset as a “justification for use of force in self-defense pursuant to the UN Charter.”


While acknowledging that questions may arise as to when US forces are permitted to use lethal force to defend others, Combe argues that the US could justify the use of the DSF by invoking “executive prerogative” as an element of customary international law.


Regarding a US defense of Taiwan, the article raises the question of whether “sovereignty is a rule of international law, or a foundational precept but not a rule underlying legal obligations.” It then suggests that this uncertainty combined with executive prerogative can be used to justify “conflict in the littoral and other contested maritime domains.”


If you do not understand this argument, you are not alone. I don’t either.


In conclusion, the article suggests “exploring other legally available options for non-consensual operations” that include use of lethal force.


It is encouraging that the article identifies the international legal obstacles to the US use of force in the South China Sea. But it is reminiscent of the Department of Justice torture memos in that it suggests ways of getting around these “inconvenient” obstacles.


This spate of zany militarist articles should ring warning bells around the world, and especially in Southeast Asia.

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