ISSN 2330-717X

A Shockingly One-Sided Report To The US Congress On The South China Sea Issues – Analysis

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The US Congressional Research Service (CRS) is Congress’s public policy think tank  providing policy and legal analysis to committees and Members of both the House and Senate. In its own words, its research is supposed to be “objective” and “free of built-in bias.” http://www.loc.gov/crsinfo/about/values.html  But this is certainly not the case with its recent Report entitled “U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress.” https://fas.org/sgp/crs/row/R42784.pdf  Indeed it is riddled with misunderstandings, misrepresentations of fact and just plain bias.

First of all, the Report is based on a false fundamental premise. It asserts that “a key element of the U.S.-led international order that has operated since World War II is the principle that force or coercion should not be used as a means of settling disputes between countries, _ _.”  It then repeats the warning of some analysts that China’s actions in the South China Sea (SCS) challenge this principle and could help reestablish the very different principle of “might makes right” as a routine or defining characteristic of international relations.” But many argue that the U.S. has repeatedly used coercion and outright military force in settling its disputes with other countries – to name but a few—Cuba, the Dominican Republic, Grenada, Panama, Iraq, Syria –and it continues to do so both overtly and covertly in its relations with many countries. Indeed, under President Donald Trump such use of coercion in foreign policy has become almost routine. China is simply following the U.S. example.

The Report then goes on to treat US Freedom of Navigation Operations (FONOPs) without ever mentioning that some could be seen as a violation of the UN Charter.   All states have a legal duty to ‘refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State’. https://www.un.org/ruleoflaw/files/3dda1f104.pdf  But US FONOPs challenge both China’s territorial and jurisdictional claims with warships.  https://www.lawfareblog.com/dewey-freedom-navigation-operation-challenges-chinas-sovereignty-mischief-reef  The intent of FONOPs appears to be to coerce China to rescind claims that the U.S. considers inconsistent with the UN Convention on the Law of the Sea (UNCLOS).  China certainly interprets US FONOPs this way, and given that US FONOPs have been directed against the claims of almost all South China Sea coastal countries, this perception is not confined to China. 

But where this CRS Report is most shockingly and dangerously unbalanced is in its treatment of freedom of navigation of warships and warplanes in the Exclusive Economic Zone – – one of the most contentious China-US issues in the South China Sea.

The Report asserts that “China’s position [is] that coastal states have the right to regulate the activities of foreign military forces in their EEZs.”  This is a simplistic and superficial understanding of China’s probable position.  Compounding matters, some of the Report’s assumptions and recommendations on freedom of navigation in Exclusive Economic Zones (EEZs) are based on this misunderstanding.

Unlike Malaysia and Thailand, China does not oppose all foreign military activities in its EEZ without its permission.  But China certainly does object by word and deed to what it perceives as US abuse of the right of freedom of navigation in, over and under its EEZ.  China holds that some US military activities there violate the peaceful purpose and uses provisions of UNCLOS, as well as its UNCLOS EEZ resource rights and obligations to protect the marine environment.  In particular, China alleges that the U.S. is not abiding by the UNCLOS obligation to pay ‘due regard ‘to its rights and duties as a coastal state.

As the Report notes, although the US has not ratified UNCLOS it considers most of it to be customary international law. A violation of UNCLOS may occur when and if a US Poseiden 8A drops sonobuoys (which is part of its repertoire) or the US Impeccable and US Bowditch deploy “scientific instruments” in China’s EEZ.  China also fears its EEZ environment may be degraded if the US sonar systems or live fire exercises adversely affect fish and mammals like whales and dolphins.   UNCLOS Article 258 provides that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area.”  It seems difficult to avoid the conclusion when a Poseiden 8A drops sonobuoys or the Bowditch, the Impeccable and other US naval vessels deploy such equipment in China’s EEZ without its consent, they are violating UNCLOS.

But the Report does not consider whether it is legally correct to assert “freedom of navigation and over flight of the high seas” to justify all the operations of US military aircraft and vessels in foreign EEZs, particularly its intelligence, surveillance and reconnaissance (ISR) missions.

This means that the Report’s suggested US ‘goal’ of having China adopt ” the U.S./Western definition regarding freedom of the seas, including the freedom of U.S. and other non-Chinese military vessels to operate freely in China’s EEZ” and the specific recommended actions that flow on it are based on biased or incomplete research.  Moreover it undercuts the Report’s arguments supporting U.S. ratification of UNCLOS. If the U.S. did so, China could take it to dispute settlement over some of its ISR operations – and the U.S. could well lose.

These are legitimate differences in interpretation of UNCLOS. Yet the Report criticizes China and others as not abiding by UNCLOS in this regard. It fails to note that China and many other countries argue that the Convention is a series of package deals and that non-ratifiers are not entitled to the ‘benefits’ of particular tradeoffs while eschewing their part of the bargain.  Further, the EEZ and its regime were created by the Convention, not customary law, and the EEZ is sui generis, not high seas or “international waters.”  Moreover, they argue that regulations and interpretation of the EEZ regime and key terms in the Convention like “other internationally lawful uses of the sea”, “abuse of rights”, “due regard”, “peaceful use/purpose” are evolving rapidly through state practice and non-ratifiers like the U.S. do have not the legitimacy to unilaterally interpret them to their advantage.

In the example of ISR activities in the EEZ, the Report points out that China has engaged in passive intelligence gathering in the EEZs of Guam, Hawaii, Australia and Japan and that analysts have argued this is evidence of China’s hypocrisy.  But the report neglects to mention that there may well be great differences in what the U.S. is doing and what China is doing, and that China maintains that it pays “due regard” to the rights of the coastal country during such activities – unlike some US ISR operations.

Finally, in its summary of proposals to improve US policy, the Report ignores possible compromises. For example, China and the U.S. could make a partial – and probably temporary – grand bargain. https://www.scmp.com/comment/insight-opinion/article/2077108/south-china-sea-no-sign-thaw-between-china-and-us In such a bargain, China would refrain from further occupation, construction and “militarization” on its claimed features.  It would also not undertake any extremely provocative action like occupying and building on Scarborough Shoal, harassing other claimants in the disputed area and declaring an air defense identification zone over the Spratlys.  The U.S., in turn, would decrease or cease altogether its provocative FONOPs there and its “close-in” ISR probes. It would also refrain from belligerent threats and actions.  Strategically, this would set the tone for the region – in essence a political and military de-escalation and stand –off.

These are but a few of the problems with this Report. But they raise the question of  how this Report became so one-sided.  Contrary to its own rhetoric, the research for this Report reflects built in bias.  The whole canard of conflating freedom of commercial navigation with provocative, possibly illegal military intelligence, surveillance and reconnaissance along China’s coast is a product of a U.S. government propaganda campaign.  It has been so successful that it has confused its own citizenry and their elected representatives.  China has never threatened commercial freedom of navigation and is highly unlikely to do so in peacetime.  This is not because of its adherence to some high moral principle.  It is because it would not be in its interest to do so as its economy depends heavily on it.  The U.S. government well knows this and yet is seemingly willing to risk conflict by conflating these issues. 

Much of the Report’s analysis of the freedom of navigation issues stove pipes Department of Defense (DOD) positions and those of its affiliates and independent supporters of these views. Apparently the advocates of more use of US military power have gained control of the US narrative regarding the South China Sea  and CRS researchers have accepted it with little or no question.

Although there is a broad spectrum of analysts regarding freedom of navigation issues in the South China Sea, the Report relies on those well known to hold views at one end of this spectrum. Indeed, most of the references for the freedom of navigation sections are to the DOD or lawyers associated with the US Navy, as well as certain biased DC think tanks. https://ippreview.com/index.php/Blog/single/id/536.html

A whole body of opinion has been ignored.   A scan of the more than 200 footnotes reveals hardly any references to a contrarian view. Important authoritative analytical works like Sam Bateman’s Freedom of Navigations in the Asia – Pacific Region https://www.amazon.com/Freedoms-Navigation-Asia-Pacific-Region-Strategic/dp/0367189739 or the EEZ Group 21’s Guidelines for Navigation and Overflight in the exclusive Economic Zone A Commentary http://nippon.zaidon.info/seikabutsu/2005/00817/contents/0001.htm or the many individual articles which contribute to and expand upon these syntheses. https://www.nbr.org/publication/foreign-military-activities-in-asian-eezs-conflict-ahead/   Similarly, the Report’s selected proposers of proposals for modification of US policies overwhelmingly represent and emphasize support “for a stronger or more effective US strategy” using its military power.

The US Congress needs the best unbiased information available to make the best choices for the country. They are the political deciders.  If it has come to be that even the tax payer –supported CRS cannot or will not examine all sides of an issue, the U.S. – as a nation – and its foreign policy will be subject to poorly informed decisions.  

Mark J. Valencia

Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles. He is currently an Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China.

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