03 January 2011

Military Activities in the EEZ: A U.S.-China Dialogue on Security and International Law in the Maritime Commons

Peter A. Dutton, ed., Military Activities in the EEZ: A U.S.-China Dialogue on Security and International Law in the Maritime Commons, Naval War College China Maritime Study 7 (December 2010).

On the wall in the entranceway to the personal offices of the Commander, Pacific Fleet, there hangs prominently displayed a life-size portrait of Adm. Chester William Nimitz, the legendary architect of the American naval victory in the Pacific sixty-five years ago. The painting is specially lit, giving the admiral’s thoughtful gaze a lifelike glow as if he were present, judging the decisions and actions of his successors in command as these officers find means to preserve regional peace and guard American interests. In the painting’s background are the objects of naval war, standing as striking reminders of the heavy price in American blood and treasure paid for the nearly three generations since then during which the Pacific Ocean has been an American lake. It has been this freedom from serious threat that has provided room for American strategic and operational maneuver during the Korean conflict, the Vietnam War, and the Cold War, that has afforded an avenue for the movement of forces during conflicts in Iraq and Afghanistan, the capacity to deter conflict in East Asia, the access needed to assure the security of allies and partners, and the ability to provide support to populations devastated by disaster.

The responsibility to keep peace and find means to secure American interests for future generations must weigh heavily on each commander as he passes Nimitz’s gaze, and never more so than today. Change is afoot in the Pacific. The Chinese military is developing the capacity to challenge American freedom of action in and around the Yellow Sea, the East China Sea, and the South China Sea—China’s “near seas.” China’s naval modernization is efficiently focused on controlling access to these near seas in military crisis. For instance, China has long possessed one of the largest arsenals of naval mines in the world. Over the last three decades its navy has also developed a capable submarine fleet, to challenge the freedom of action of any naval force in the region. More recently, China has announced programs to develop antiship ballistic missiles and aircraft carriers and has demonstrated the capacity to employ antisatellite weapons and cyber-disruption. In short, China is attempting to assemble the technology to challenge the U.S. Navy’s access to the western reaches of “its” lake and thereby challenge the political access that American naval power now ensures.

China has also mobilized its lawyers. Its international-law specialists have become adjunct soldiers in China’s legal campaign to challenge the dominant, access-oriented norms at sea, especially for military freedoms of navigation in the exclusive economic zone. This expanse of waters, known as the EEZ, stretches two hundred nautical miles from a coastal state’s shores and collectively constitutes more than a third of all ocean space. Because the EEZ is a rich resource zone and a region through which all major sea-lanes pass, its space is critical to regional political stability, national resource extraction, and global commerce. For the United States, the world’s EEZs are therefore critical regions in which naval power must be brought to bear in support of two fundamental sources of stability for the global system: deterrence of international armed conflict and suppression of nontraditional threats to commerce and other activities. For China, however, its EEZ and other jurisdictional waters are zones in which outside interference is an unwelcome intrusion into domestic security issues, a zone of competition for resources with neighboring states that claim overlapping rights, and a region in which national, not international, maritime power should dominate.

These dichotomous perspectives flow from fundamentally different views about regional security, and they form the basis of a simmering tension between the Chinese and American maritime power. That tension occasionally erupts, such as it did in April 2001 during the EP-3 incident and in March 2009 during the USNS Impeccable incident. The Impeccable incident occurred when a collection of Chinese government and fishing vessels maneuvered in dangerously close quarters around the American survey vessel and interfered with the performance of its operations in the South China Sea more than seventy miles off China’s nearest coastline. The EP-3 incident occurred eight years earlier in nearly the same location when a Chinese intercept aircraft collided with an American patrol plane as it performed routine reconnaissance operations in the airspace over the South China Sea.

This volume is the product of a workshop held in Newport in July 2009 to discuss the different perspectives held by the United States and China on the legitimacy of foreign military activities in a coastal state’s EEZ. The conference, addressing “The Strategic Implications of Military Activities in the EEZ,” was attended by fifty representatives of the American and Chinese policy, military, legal, and academic communities. Its aims were to increase mutual understanding of the bases for each state’s perspectives and to add a dimension of richness to ongoing talks between the two countries under the framework of the Defense Consultative Agreement and the Military Maritime Consultative Agreement. Eight papers from workshop participants are reproduced here; during the two days of substantive discussions each attendee also made other significant contributions to the success of these objectives. We extend our thanks and gratitude to each of them.

The workshop, falling as it did just four months after the confrontation between Chinese civilian and government vessels and the USNS Impeccable, produced for American participants an extraordinary level of discussion and insight into the Chinese view of its security interests and China’s perspective on the protections those security interests are guaranteed by international law. The Impeccable incident, like the 2001 EP-3 incident before it, focused a spotlight on American survey and intelligence operations in the South China Sea as a flash point in the larger dispute between the United States and China over the balance of coastal-state and user-state rights in the EEZ. The statements of the Chinese government in the aftermath of each of these events, claiming that such U.S. naval operations were illegal and threatening to China, demonstrate the sharp differences of perspective over what traditional military activities constitute legitimate uses of those waters.

Although the conflict is generally expressed by both Americans and Chinese in terms of international law, the friction is not fundamentally about correct legal interpretation of international law or of the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). Rather, the legal conflict reflects a larger clash between China’s objective of increasing its control over its near seas and the American interest in maintaining the freedoms of navigation on which the stability and security of the global maritime commons rely. The language of international law is nonetheless important, because it is the primary field of battle chosen by the parties to contest their claims.

For this perhaps we should all be grateful, since the ongoing friction and occasional incidents, tense as they are, are managed and contained by this resort to law rather than to force. It is important to observe that despite tension in military-to-military relations, the overall bilateral relationship remains one of productive strategic engagement, even if strategic cooperation is not entirely achieved. Thus, the dispute about U.S. military operations in China’s near seas has not hampered overall bilateral economic, commercial, diplomatic, or even military cooperation (antipiracy operations in the Gulf of Aden and United Nations peacekeeping stand as ongoing examples). This should provide all parties reason for optimism that the friction can continue to be managed without escalation into larger conflict. That said, the friction remains tactically dangerous. One person—Chinese pilot Wang Wei, in the EP-3 incident—has already died, and it behooves all concerned to develop deeper understandings of the nature and sources of conflict so that, where possible, incidents can be avoided until a new modus vivendi for regional security can be achieved.

In that regard, the workshop highlighted three fundamental areas of contention between the United States and China concerning foreign military activities in East Asian seas. The first relates to China’s rather ambiguously based assertion of jurisdiction over almost all the waters of the South China Sea, as expressed in the “U-shaped line,” sometimes also referred to as the “nine-dashed line” or “Cow’s Tongue.” The second area of contention touches the American “third rail” of freedom of naval navigation for military purposes. China’s claim that the balance of coastal-state jurisdiction and international freedoms for military activities in the EEZ favors the coastal state’s right to limit foreign military activities presents, as the American authors in this volume describe, an unacceptable narrowing of traditional navigational freedoms. These divergent perspectives formed the core of discussions at the workshop and are the basis for the majority of chapters in this volume. The third area of serious debate was the sincerity of the United States in its desire to develop a more cooperative maritime relationship with China. While many American security experts accept cooperation almost as an article of faith, the Chinese participants were agnostic on this point. …