20 April 2018

The Complete Peter Dutton Bookshelf: China’s Maritime Legal Approaches, Sovereignty Claims, Activities & Geostrategy

For well over a decade, Naval War College professor and China Maritime Studies Institute director Peter A. Dutton has played a leading role in analyzing and interpreting China’s disputed island and maritime sovereignty claims, efforts to promote them, and broader geostrategic goals and trajectory. He has done so for the scholarly and policy communities, the U.S. Navy, and other organizations of the U.S. government. He has drawn on an unusual—if not unique—combination of training as a scholar, lawyer, naval flight officer, and journalist.

Since early 2011, Prof. Dutton has fostered broader understanding of China’s strategy, policy, and activities at sea as head of CMSI. Under his organizational and intellectual leadership, CMSI scholars perform academic research from Chinese language sources to develop deeper insight into key aspects of China’s growing maritime power. Research is published to inform the Navy and engage the nation. CMSI faculty also advise current leaders and educate the Navy’s next generation.

In doing so, Prof. Dutton has helped to pioneer an important academic field truly understood by only a select view, some of whom lack his freedom to interface with such a broad range of interlocutors and audiences on both sides of the Pacific. Though too modest to say so himself, Prof. Dutton can already claim significant formal and informal policy influence. In the formal dimension, his periodic testimony before U.S. government bodies bears (re)reading as an encapsulation of his ongoing finding.

I have periodically reread the below testimonies and publications, and discovered fresh insights in the process. I thus commend this work by Prof. Dutton to anyone interested in this subject. The summaries below are instructive, but it’s worth clicking on the links for the full text.

 

Peter A. Dutton and Isaac B. Kardon, “Continuing to Confront China: Trump’s Approach to Maritime Security in East Asia,” GlobalAsia12.4 (December 2017).

At the 2017 Shangri-La Dialogue, held in Singapore, US Secretary of Defense James Mattis made clear that, despite some new elements and shifts in emphasis, there would be significant continuity in the US security strategy in East Asia. As he put it: “By further strengthening our alliances, by empowering the region and by enhancing the US military in support of our larger foreign policy goals, we intend to continue to promote the rules-based order that is in the best interest of the United States and all of the countries in the region.” These words could just as easily have been uttered by his predecessors in the Barack Obama administration, and indeed, those of the last several administrations. On a bipartisan basis, all shared a vocal commitment to the so-called liberal international order, underwritten by a formidable US forward military presence in East Asia. 

In the contested East and South China Seas, the current administration continues to anchor its policy in defense of “the rules” and the security of allies. On the key questions of sovereignty, maritime jurisdiction and US access to the East Asian littoral, we see a surprising lack of major adjustments. It is, of course, possible that this is just temporary, but in the first year of the new administration, policy on maritime disputes in Asia remains roughly unchanged. Below, we analyze two major continuous aspects of the administration’s policy on maritime security in the region: the central role of allies and “rules-based” interactions. We then turn to some specifics on maritime disputes, most of which are still intact from the previous administration. Overall, the biggest changes are in emphasis rather than substance, though the tough talk about using US “hard power” is now matched by an augmented defense posture that may have consequences for regional security over time. …

Jerome A. Cohen and Peter Dutton, “How India Border Stand-Off Gives China a Chance to Burnish its Global Image,” South China Morning Post, 21 July 2017. 

For the past month, there has been a tense stand-off between China and India in the tri-border Himalayan region that includes Bhutan. Troubles began when China resumed building a road on the Doklam Plateau, which is disputed between Bhutan and China. India, because of its own security interests and as Bhutan’s security guarantor, stepped in to defend the position of the kingdom. China now claims India has invaded “its” territory. Tensions are high, and more than a few commentators have suggested this may be the most serious Sino-Indian border crisis since their 1962 war.

Many possibilities have been advanced for Beijing’s motive to stir up trouble. Some suggest Beijing seeks to peel Bhutan from India’s orbit. Others believe China seeks to take tactically useful high ground from which to threaten a narrow pass connecting to India’s eastern territories. Others focus on domestic Chinese political-military motivations ahead of the 19th Communist Party Congress. Another possibility is that China may be using the tension to create leverage in advance of border dispute negotiations. But why provoke India now? …

Peter A. Dutton and Ryan D. Martinson, eds., China’s Evolving Surface Fleet, Naval War College China Maritime Study 14 (July 2017).

Peter A. Dutton and Isaac B. Kardon, “Forget the FONOPs—Just Fly, Sail and Operate Wherever International Law Allows,” Lawfare Blog, Paul Tsai China Center, Yale Law School, 10 June 2017.

On May 24, the guided-missile destroyer USS Dewey (DDG 105) operated within 12 nautical miles (nm) of Mischief Reef, a disputed feature in the South China Sea (SCS) controlled by the People’s Republic of China, but also claimed by the Philippines, Taiwan, and Vietnam. The Dewey’s action evidently challenged China’s right to control maritime zones adjacent to the reef —which was declared by the South China Sea arbitration to be nothing more than a low tide elevation on the Philippine continental shelf.  The operation was hailed as a long-awaited “freedom of navigation operation” (FONOP) and “a challenge to Beijing’s moves in the South China Sea,” a sign that the United States will not accept “China’s contested claims” and militarization of the Spratlys, and a statement that Washington “will not remain passive as Beijing seeks to expand its maritime reach.” Others went further and welcomed this more muscular U.S. response to China’s assertiveness around the Spratly Islands to challenge China’s “apparent claim of a territorial sea around Mischief Reef…[as well as] China’s sovereignty over the land feature” itself.

But did the Dewey actually conduct a FONOP? Probably—but maybe not. Nothing in the official description of the operation or in open source reporting explicitly states that a FONOP was in fact conducted. Despite the fanfare, the messaging continues to be muddled. And that is both unnecessary and unhelpful. …

Bonnie S. Glaser, “Breaking down the South China Sea ruling: A Conversation with Peter Dutton,” China Power Podcast, Center for Strategic and International Studies, April 2017.

In this episode, we discuss the landmark UNCLOS ruling by an arbitral tribunal constituted under the Convention with Peter Dutton, Director of the China Maritime Studies Institute at the U.S. Naval War College. On July 12, 2016, the tribunal ruled against China’s claims to historic rights within the Nine-Dash Line, and that its construction of several artificial islands violated the sovereign rights of the Philippines. It also found that China is in violation of its obligation to protect the marine environment and that its vessels are illegally harassing Filipino fishermen and interfering with energy exploitation efforts. China declared the award null and void and insisted that it has no binding force. China said it neither accepts nor recognizes the decision. …

Bonnie GlaserZack Cooper, and Peter Dutton, “Mischief Reef: President Trump’s First FONOP?” Asia Maritime Transparency Initiative, Center for Strategic and International Studies, 30 November 2016.

The election is barely over, but the pressure will soon be on the new administration and its national security team to demonstrate U.S. resolve to support international rules and norms in the South China Sea. Observers will be watching closely for any sign of the new administration’s willingness, or unwillingness, to accept risk in response to China’s recent assertive behavior. In particular, regional experts will judge the new administration on where and when it conducts its first freedom of navigation operation (FONOP) in Asia. China too may be tempted to test the new administration’s policies with assertive operations, as was done in 2001 and 2009. …

Teleconference with Peter Dutton on the South China Sea Tribunal Decision,” Event Audio, National Committee on U.S.-China Relations, 13 July 2016. 

U.S. Naval War College Professor Peter Dutton discusses the UNCLOS Arbitral Tribunal decision on the Philippines’ South China Sea case against China in an on-the-record teleconference moderated by National Committee President Stephen Orlins on July 13, 2016. Professor Dutton has been an active participant in the Committee’s U.S.-China Track II Dialogue on Maritime Issues & International Law, and shared his views on the implications of the decision for China, its neighbors, and Sino-American relations. …

Peter A. Dutton, “A Dispute about Legality, or a Political Onslaught? China’s Response to the Arbitration Decision on the South China Sea Issue,” Commentary, Royal United Services Institute (RUSI), 8 August 2016.

China has advanced a number of arguments to justify its decision to ignore the arbitral tribunal’s recent ruling on the South China Sea dispute. None of them make much legal sense, but all raise questions about China’s views of the international order.

Immediately following the 12 July decision of the arbitral tribunal’s hearing on the South China Sea dispute between the Philippines and China, the People’s Republic embarked on a major media offensive, with Liu Xiaoming, the Chinese Ambassador to London, attacking the decision as illegal, and ‘a political farce’. No criticism avenue was spared. China’s vice foreign minister even wondered why there were no Asians on the tribunal, evidently implying that the race and nationality composition of the tribunal somehow automatically impaired its fairness. In its war of words, Beijing criticised everyone and everything, from the US, to Japan, and of course the Philippines for their direct role in the legal upset. With raw emotions now fading and no sign of a possible Sino–Philippine deal resulting from the ruling, it is time for a more reasoned reflection on the case. …

Jerome A. Cohen and Peter A. Dutton, “Japan’s Important Sideshow to Arbitration Decision in the South China Sea,” East Asia Forum, 16 May 2016.

While tensions continue to rise in the South China Sea and the disputing governments nervously await a decision in the Philippines’ arbitration case against China, an important sideshow has arisen between Japan and Taiwan in the central Philippine Sea.

On 24 April Japan’s Coast Guard arrested a Taiwanese fishing vessel and its crew for fishing in waters that Japan claims are part of its 200-nautical mile ‘exclusive economic zone’ (EEZ) under the United Nations Convention on the Law of the Sea (UNCLOS). Japan’s EEZ claim is based on its control over two tiny rocks surrounded by a coral reef more than 1000 miles south of Tokyo. Although Japanese military patrols began chasing Taiwanese fishing boats away from the area two years ago, this was reportedly the first actual detention since 2012. …

Peter A. Dutton, “A Maritime or Continental Order for Southeast Asia and the South China Sea?” Address at Chatham House, London, U.K., 16 February 2016; reprinted in Naval War College Review 69.3 (Summer 2016): 5-13.

… Today, China’s land power is once again ascendant in the region in the form of missile, air, space, and cyber forces, augmented by a growing naval capability. Accordingly, the future locus of strategic power in the South China Sea—maritime or continental—is in play. So too may be the degree to which Southeast Asia, and especially continental Southeast Asia, will have freedom to choose trade and engagement policies without Beijing’s imprimatur. My central thesis is that China’s advances into the South China Sea pose a challenge to the capacity of naval and other power-projection forces to ensure an open economic and political regional order. In particular, China’s island building in the Spratly Islands creates a significant new strategic challenge to the open, global, liberal, maritime order in Southeast Asia.

Many have asked, what are the strategic implications of China’s island-building program in the South China Sea, and why has America reinvigorated its freedom-of-navigation program to begin to address it? …

As I see it, the purpose of the U.S. freedom-of-navigation program is to support the maintenance of a rules-based international order at sea. Some Americans assume that this maritime order exists on its own, that the security, economic benefits, and political stability that flow from this order exist without any effort from us, like the oxygen we breathe. This is simply not the case. The maritime order that has promoted global economic growth since 1945 and the peaceful expansion of state interests into the oceans of the world since 1982 is an order that was created and must be tended. This order is expressed through a structure of international law and institutions, such as the UN Convention on the Law of the Sea and the customary law the convention reflects. But law never exists in a vacuum. Law exists because the sovereign authority of states establishes it, and it persists primarily because the power of states reinforces and sustains it. Thus, there is a fundamentally important correlation between law and power. Law cannot exist without power to reinforce it. And power without the limits of law is mere tyranny. This is as true at sea as it is on land. So the purpose of the freedom-of-navigation program, as I see it, is to marry American power with international law in order to reinforce the rights and obligations and the freedoms and duties that comprise international law of the sea. …

Concerning the new strategic dynamic, China’s island building has the tendency to turn the South China Sea into a strategic strait. In essence, it presents a situation for naval power much like a long Strait of Hormuz. How does the South China Sea, a body of water at least six hundred nautical miles wide, become a strait? If the Chinese place sea-denial military capabilities on the reclaimed islands, the South China Sea becomes a body of water that can be controlled from the land territory of a single country. When Chinese bases remained in the northern part of the South China Sea, it was clear they were defensive in nature and posed less of a threat to free movement of seapower in the South China Sea. But the new bases China has built on islands in the southern part of the South China Sea have military-sized runways, substantial port facilities, radar platforms, and space to accommodate military forces. The logical conclusion to draw from the addition of these facilities to China’s preexisting mainland bases is that the country seeks the capability to dominate the waters of the South China Sea at will. Building the islands is therefore, in my view, a significant strategic event. These actions leave the potential for the South China Sea to become a Chinese strait rather than an open component of the global maritime commons. …

… In closing, global maritime access and the security it provides, unlike the air we breathe, do not just exist as a state of nature. They must be established and then regularized through laws and institutions that support them. And then . . . they must be defended through political, economic, and military means when challenged.

Bonnie S. Glaser and Peter A. Dutton, “The U.S. Navy’s Freedom of Navigation Operation around Subi Reef: Deciphering U.S. Signaling,” National Interest, 6 November 2015.

“To ensure that China and other nations around the world fully understands what took place, the Pentagon should explain the legal basis for its operation and clarify what message it intended to send.”

Since the United States sailed in the waters close to Subi Reef, a low-tide elevation (LTE) that China has built up into a massive artificial island, some experts have charged that the U.S. bungled the operation by conducting an “innocent passage,” implicitly granting China a 12 nautical mile territorial sea around the LTE to which it is not entitled. This accusation is not valid, however, and reflects an incomplete understanding of what is admittedly a complicated element of the Law of the Sea Convention.

Critics of the naval maneuver have contended that to underscore the message to China that it is not entitled to a territorial sea around Subi Reef it was necessary to conduct a freedom of navigation operation in a manner that blatantly challenges an excessive maritime claim that goes beyond what is entitled under the United Nations Convention on the Law of the Sea (UNCLOS). In other words … no innocent passage. However, the geography of the Spratly archipelago, which contains more than 120 scattered islands, isles, shoals, banks, atolls, cays and reefs situated in close proximity to one another, is key to understanding the nature of the U.S. Navy’s freedom of navigation operation. Before analyzing this criticism, the relationship between maritime geography and the law of the sea must also be set out. …

Peter A. Dutton and Ryan D. Martinson, eds., Beyond the Wall: Chinese Far Seas Operations, Naval War College China Maritime Study 13 (May 2015).

Peter A. Dutton and Andrew S. Erickson, “When Eagle Meets Dragon: Managing Risk in Maritime East Asia,” RealClearDefense, 25 March 2015.

On 19 August 2014 a U.S. Navy (USN) P-8A Poseidon maritime surveillance aircraft was flying in international airspace above the Chinese exclusive economic zone (EEZ) ~135 miles east of Hainan Island in the South China Sea when a People’s Liberation Army Navy (PLAN) armed J-11 fighter intercepted it. In a series of maneuvers that came within 30 feet of the P-8, the J-11 exposed its weapons load out and conducted a barrel roll over the U.S. aircraft, passing within 45 feet of the U.S. aircraft. While the incident ended without a collision or harm to the aircrew, it invoked memories of another that did not end as well—the April 2001 collision between a USN EP-3 and a PLAN J-8 in which the Chinese pilot perished. Pentagon Spokesman Rear Admiral John Kirby described the encounter as “very, very close, very dangerous…unprofessional…unsafe…and…certainly not keeping with the kind of military-to-military relationship…we’d like to have…with China. … The message we’re sending back to China is that’s unacceptable and unhelpful to the military relationship that we would like to have with them.”

The P-8 Incident’s seriousness spurred the U.S. government to seek assurances that future interactions between military units would be conducted safely, resulting in eight weeks of negotiations and five weeklong meetings between two working groups of American and Chinese military officials with U.S. Navy representation on both teams. As a result, two Memoranda of Understanding (MOUs) designed to enhance stability of bilateral military relations were signed at the November 2014 APEC Summit by U.S. Secretary of Defense Chuck Hagel and Chinese Minister of Defense Chang Wanquan. This process fulfilled a suggestion by President Xi Jinping to President Obama at the June 2013 Sunnylands Summit to explore CBMs to improve the bilateral and regional military climate. …

Peter Dutton, Andrew S. Erickson, and Ryan Martinson, eds., China’s Near Seas Combat CapabilitiesNaval War College China Maritime Study 11 (February 2014).

Peter A. Dutton, Professor and Director China Maritime Studies Institute, U.S. Naval War College, Testimony before the House Foreign Affairs Committee Hearing on China’s Maritime Disputes in the East and South China Seas, 14 January 2014.

China pursues its security through interior strategies that involve the development of rings of security around central areas of national interest. The Chinese have long felt vulnerable from the sea and their current maritime strategy seeks to reduce that vulnerability by extending a ring of maritime control around China’s periphery. China pursues this control through a combination of force structure development and legal assertions. Tensions arise because China’s strategy conflicts with the territorial claims, resource interests, and security concerns of other states in East Asia. China’s strategy also causes friction with the United States, which relies on freedom of navigation in maritime East Asia for American security interests and which must reassure regional allies and partners that American security guarantees are meaningful. In order to assure the position of the United States in East Asia, American policies must focus on maintaining the region as an open, maritime system. This requires continuous development of technological advantages to ensure the center of power in Asia does not migrate from the maritime domain to the continent. It also requires supporting the ability of allies, friends, and partners to resist China’s non-militarized coercion, and reinforcing the normative structure that supports the efficacy of maritime power in the region and around the globe. ….

Peter A. Dutton, Professor and Director, China Maritime Studies Institute, U.S. Naval War College, Testimony before the U.S.-China Economic and Security Review Committee Hearing on China’s Maritime Disputes in the East and South China Seas, 4 April 2013.

Questions presented: What are the origins of China’s territorial claims in the East and South China Seas? Upon what historical, geographic, or other bases does China justify them? What is China’s strategy for promoting its “9-dash line” claim? How does China address skepticism to this claim and how sustainable is this strategy? What impact will the Philippines’ initiation of South China Sea boundary arbitration proceedings have on the outlook for the resolution of other maritime boundary disputes in the region? What is the impact of China’s decision not to participate in the proceedings? How will the maritime boundary dispute in East Asia be resolved, if at all? What avenues have the greatest promise to yield an enduring solution? Discuss possible roles for international institutions, such as the United Nations (UN), and regional institutions, such as the Association of Southeast Asian Nations (ASEAN). What should be the role of the US in achieving resolution and ensuring the resolution endures?

Peter A. Dutton, “Three Disputes and Three Objectives: China and the South China Sea,” Naval War College Review 64.4 (Autumn 2011): 42-67.

The recent heightening of the competition between China and its neighbors over sovereignty, resources, and security in the South China Sea has drawn the attention of diplomatic and military leaders from many countries that seek to promote stability and security in these globally important waters. For states that ring the South China Sea, its waters represent a zone of rich hydrocarbon and protein resources that are increasingly dear on land as populations exhaust their territories’ ability to meet their increasing needs. This resource competition alone could be the basis of sharp-edged disputes between the claimants. However, the South China Sea also represents the projection of the cultural consciousness of the centuries-long relationship that each coastal nation has had with its adjoining seas. This fact fuels competing modern-day nationalist tendencies among claimant-state populations, tendencies that in turn magnify the importance of the disputes and, during times of crisis, narrow the options for quiet negotiation or de-escalation.

As American leaders discuss policies and strategies in support of regional stability, some have described the complex disputes in the South China Sea as essentially a tangled knot of intractable challenges. Actually, however, there are three severable categories of disputes, each with its own parties, rule sets, and politics. There are disputes over territorial sovereignty, in the overlapping claims to the South China Sea’s islands, rocks, and reefs; disputes over which coastal states claim rightful jurisdiction over waters and seabed; and disputes over the proper balance of coastal-state and international rights to use the seas for military purposes. Unfortunately, the region’s states are currently pursuing win-lose solutions to all three of these disputes. A careful analysis of the nature of each dispute reveals, instead, opportunities for more productive pathways to resolution achieved through win-win problem solving and recognition of the mutuality and commonality of interests in these globally important waters. …

Cmdr. Carla McCarthy, Naval War College Public Affairs Office, “Dutton Becomes Director of NWC’s China Maritime Studies Institute,” 12 May 2011.

NEWPORT, R.I. – Professor Peter Dutton officially stepped into the position of director for the China Maritime Studies Institute (CMSI) at the Naval War College (NWC) on May 11.

The outgoing director, Professor Lyle Goldstein, led the institute since its establishment in 2006. He turned over leadership of the institute to focus on a number of scholarly projects he looks forward to pursuing and will remain an active member of the CMSI team.

“As founding CMSI director, Professor Goldstein has done an outstanding job creating an invaluable resource for the Naval War College, the U.S. Navy and the wider U.S. national security community,” said Ambassador (ret.) Mary Ann Peters, NWC’s Provost, when she announced the leadership transition in March.

Under Goldstein’s guidance, CMSI faculty and associates published broadly, furthered dialogue with Chinese academic counterparts, engaged with U.S. operational leaders and staffs in the Pacific region, and opened a unique research library featuring an unprecedented collection of Chinese research journals on topics ranging from marine science to regional security to defense policy. CMSI hosted six conferences and workshops dedicated to subjects such as China’s submarine developments, China’s energy strategy, and defining a cooperative maritime partnership with China. Goldstein also launched a Naval War College Press monograph series, called China Maritime Studies, an important resource for military decision makers, policymakers and academics.

Dutton joined CMSI in 2007. His current research focuses on American and Chinese views of sovereignty and international law of the sea and the strategic implications to the United States and the United States Navy of Chinese legal and policy choices.

“Peter brings to the position a breadth of experience in naval operations, international law and Asian studies,” said Ambassador Peters. “I am confident that CMSI will continue to flourish under his leadership.”

CMSI is part of the Strategic Research Department within NWC’s Center for Naval Warfare Studies, which is the research arm of NWC as a nexus for broadly based, advanced research on the naval contribution to national strategy.

Peter A. Dutton, “China’s Efforts to Assert Legal Control Over Maritime Airspace,” in Andrew S. Erickson and Lyle J. Goldstein, eds.Chinese Aerospace Power: Evolving Maritime Roles (Annapolis, MD: Naval Institute Press, 2011), 90-107.

With continuing tensions on the Korean peninsula serving as a constant reminder that international security in East Asia is inherently fragile and the heightened concerns of all states about terrorist threats from the air since 11 September 2001, intercept of foreign military aircraft and national air defense identification zones (ADIZ) once again are topics that assume a prominence in national security discussions that they have not held in several decades. Nowhere have these concerns been more active than in East Asia. China, for instance, in advance of the 2008 Summer Olympic Games announced its intent to establish an ADIZ over the East China Sea and the Strait of Taiwan to protect visitors from possible terrorist air attack. Elsewhere in the region, Japan increased the number of air intercepts it performs each year. Additionally in 2008, increased Chinese air exercises in the central East China Sea region, ownership of which is disputed by Japan and China, caused “emergency scrambling” by Japanese Self-Defense Force jets. Most recently, in July 2010, Japan extended the southern portion of its ADIZ twenty-two kilometers closer to Taiwan to ensure air coverage over all portions of the southernmost island in the Ryukyu island chain, known as Yonaguni. While this move was essentially administrative in that it adjusted Japan’s ADIZ to cover the internationally recognized sovereign Japanese airspace over the airspace of Yonaguni Island and the territorial sea surrounding it, the action nonetheless provoked a sharp response from the Taiwan authorities. …

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 of 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 of officers and 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. …

Peter A. Dutton, “Charting the Course: Sino-American Naval Cooperation to Enhance Governance and Security,” in Andrew S. Erickson, Lyle J. Goldstein, and Nan Li, eds., China, the United States, and 21st Century Sea Power: Defining a Maritime Security Partnership (Annapolis, MD: Naval Institute Press, 2010), 197-235.

In December 2004 the president of the United States issued a National Security Presidential Directive that called upon the agencies of the federal government to enhance U.S. security and global security in the maritime domain by, among other measures, “enhancing international relationships . . . [and the] global maritime security framework to advance common security interests, [and] ensuring seamless, coordinated implementation of authorities . . . relating to the security of the Maritime Domain.” With these statements, the president called forth the substantial American law enforcement and national security capacities and directed utilization of the full measure of law enforcement and national security authorities to improve maritime security.

Similarly, in December 2008, Chinese leaders announced that the People’s Liberation Army Navy (PLA Navy) would join the antipiracy efforts of the horn of Africa pursuant to UN Security Council resolutions authorizing the international community to enter Somali territorial waters and even its sovereign territory. This shift reflected recognition that China’s increasing interests in global affairs are threatened by nontraditional security concerns, including the piracy that caused increasing disruption to shipping traffic in the critical sea lines of communication that run through the Gulf of Aden and connect oil and commercial trade routes between Europe, the Middle east, and Asia. However, despite China’s rapid rise across all dimensions of maritime power and corresponding increased interest in security and stability on the seas, China’s unique perspectives on international law authorities, grounded in its long history and current strategic interests, make it difficult to find direct avenues for cooperative maritime security efforts with the United States.

However, despite China’s ongoing participation in counterpiracy operations in the Gulf of Aden, this continues to be especially true of international military efforts to provide security in other states’ exclusive economic zones (EEZ)—the non-sovereign maritime zones in which coastal states have sovereign rights to resources and jurisdiction to enforce resource-related laws. This difference of perspective on legal authorities has kept China from contributing to such activities as the Proliferation Security Initiative and Combined Task Force 150; indeed, Chinese officials and scholars have publicly questioned the legal rationales behind them. Conversely, China has been more supportive of direct state-to-state cooperative efforts such as its cooperation with the United States on the Container Security Initiative and antipiracy actions sanctioned by the United Nations. To see more clearly why China is willing to participate in some international efforts to enhance maritime security but not others, it is helpful first to reflect on the maritime environment to which both China and the United States are reacting, then to compare American and Chinese perspectives on the legal authorities legitimately available to achieve security at sea, and finally to reflect on the different maritime strategies from which each country’s legal perspectives take shape. …

Peter A. Dutton, “Caelum Liberam: Air Defense Identification Zones Outside Sovereign Airspace,” American Journal of International Law 103.4 (October 2009): 691-709.

With the heightened concerns of states about threats from the air since September11, 2001, and the recent resurgence of major military powers, Air Defense Identification Zones (ADIZs), zones in which civil aircraft must identify themselves and may be subject to air traffic control if they intend to fly from non-sovereign airspace into sovereign airspace, have assumed a degree of prominence in national security discussions that they have not received in several decades. China, for instance, in advance of the 2008 Summer Olympic Games, considered establishing an ADIZ over the East China Sea and the Strait of Taiwan to deal with potential threats to the games from the air, and Norway and the United Kingdom have repeatedly scrambled aircraft in response to Russian military flights near their national airspaces. This level of attention to threats from the air has not been seen since the height of the Cold War in the 1950s and 1960s, when coastal states established many ADIZs in the airspace over the oceans to help protect themselves from unwanted intruders and to warn of potential nuclear strikes. Some Cold War ADIZs remain in place, including the North American ADIZ, created by Canada and the United States over the Arctic. At that time, however, the landscape of international law was relatively simple: airspace over sovereign territory, including a narrow 3-mile band over territorial waters, was fully sovereign. All remaining airspace reflected the status of the high seas; that is, it was a zone in which all states equally enjoyed navigation and overflight freedoms. Yet in the decades since the 1950s much has changed in the international law of the sea, raising questions as to whether these legal developments have affected the status of maritime airspace or established new authorities that allow coastal states to regulate foreign aircraft in the airspace beyond the territorial sea in derogation of the overflight freedoms of other states. …

Peter Dutton, Associate Professor, China Maritime Studies Institute, U.S. Naval War College, Testimony before the United States Senate Committee on Foreign Relations Hearing on Maritime Disputes and Sovereignty Issues in East Asia, 15 July 2009.

… 1. China’s South China Sea legal claims and the activities it has undertaken to enforce them pose a challenge to America’s regional and global maritime interests.

  1. China sees its sovereignty claims in the South China Sea as fundamentally nonnegotiable, yet close to being within its grasp to consolidate.
  2. China is a developing maritime power, but its maritime development is best characterized as a maritime enhancement to China’s continental strategic focus, rather than as a rising expeditionary maritime force.
  3. The U.S. should exercise renewed maritime leadership to ensure the regional and global access necessary to our national defense and to the security of the global maritime system generally. …

Peter A. Dutton, Associate Professor, U.S. Naval War College, Testimony before the U.S.-China Economic and Security Review Committee Hearing on The Implications of China’s Naval Modernization for the United States, 11 June 2009.

Questions presented: How does China’s unique view of the Exclusive Economic Zone (EEZ) impact regional security? Is there room for cooperation between the U.S. Navy and the PLAN on global maritime security? If so, how? …

There is some reason to hope that as Chinese naval power grows, Chinese leaders may gain insight into the benefits of the access-oriented bases of international law of the sea. China’s decision to participate in anti-piracy operations in the Gulf of Aden, though couched in terms of authorization by the United Nations Security Council and the consent of the Somali Transitional Federal Government, is an encouraging opportunity to demonstrate the power of a global maritime partnership to bring about the order and stability necessary for the well-functioning of the global system on which the economic health and political strength of all major countries relies. Such operations enable China to participate meaningfully in the provision of the ‘global goods’ that come from maritime humanitarian and constabulary operations which are meaningfully supported by reasonable interpretations of international law of the sea.

Additionally, cooperation is more likely to occur between Chinese and American naval forces the further away they operate from the East Asian coastal regions. China’s relatively recent history of invasion from the sea seems understandably to have left scars in its national psyche that make it likely that the presence of U.S. naval vessels in its EEZ will remain a source of friction. However, China’s aspirations to play a global role as a responsible major power and its willingness to undertake security operations in parallel, if not exactly in direct cooperation, with the U.S. and other maritime states in the Gulf of Aden suggests that future such opportunities will present themselves and should be welcomed. The more that China works with the U.S. and like-minded states away from its shores, the greater the chance that the essential factor of trust will begin to enter into the equation of U.S.-China relations in East Asia. Should opportunities arise for cooperation in East Asia, such as humanitarian assistance or disaster relief, China should be welcomed as a partner. China’s new hospital ship may provide opportunities in this regard.

In the meantime, the U.S. needs to reassert its leadership role as an advocate for the importance of the access-oriented bases of international law of the sea. A comprehensive strategic communications plan should be developed and coordinated across the agencies of the U.S. government. Additionally, since UNCLOS is the basis of most modern international law of the sea—either as a matter of treaty responsibilities for parties, or as a matter of customary law for non-parties–the U.S. should ratify the Convention in order to more effectively exercise leadership from within its ranks, not just from outside them.

Peter A. Dutton, Scouting, Signaling, and Gatekeeping: Chinese Naval Operations in Japanese Waters and the International Law Implications, Naval War College China Maritime Study 2 (February 2009).

In October 2008, a month after Prime Minister Shinzo Abe of Japan stepped down and the more hawkish Taro Aso took office, a Chinese flotilla of four People’s Liberation Army Navy (PLAN) ships transited from west to east through Japan’s narrow Tsugaru Strait en route to the Pacific Ocean. The vessels were observed together in the Sea of Japan, headed east toward the strait, by a Japan Maritime Self-Defense Force (JMSDF) P-3C patrol aircraft; they were about twenty-five nautical miles west-southwest of Tappizaki, the cape at the northern tip of the Tsugaru Peninsula, where the Sea of Japan enters the Tsugaru Strait between the islands of Honshu and Hokkaido. The flotilla consisted of a Sovremennyy-class missile destroyer—one of four China bought from Russia between 1996 and 2002—a supply ship, and two Jiangkai frigates, one of which was a newly commissioned Jiangkai II. Apparently the Sovremennyy and one of the frigates had recently “paid a friendly visit to a naval base in the Russian Far East” before joining the other two Chinese naval vessels in the Sea of Japan and proceeding on through the strait to the Pacific Ocean…

Peter A. Dutton, Associate Professor, China Maritime Studies Institute, U.S. Naval War College, Testimony before the U.S.-China Economic and Security Review Commission on China’s Views of Sovereignty and Methods of Access Control, 27 February 2008.

The Chinese are seeking to alter the traditional balance of maritime rights between coastal states and the international community, especially in and above the Exclusive Economic Zone, as they seek to consolidate and extend sovereignty over their maritime periphery. China’s efforts to alter the balance of maritime rights are part of its overall anti-access strategy, and could have an impact on the perceived legitimacy of U.S. operations in the region, especially in times of crisis. In response, the U.S. should: promote military engagement to build trust; communicate the expectation that China must accept the burdens as well as the benefits of the international system; continue to exercise international prerogatives in offshore waters and airspace; commit to the preservation of the legal freedoms at sea that belong to the international community; and maintain its commitment to naval strength in East Asia. …

Peter A. Dutton, “International Law and the November 2004 ‘Han Incident’,” in Andrew S. Erickson, Lyle J. Goldstein, William S. Murray, and Andrew R. Wilson, eds., China’s Future Nuclear Submarine Force (Annapolis, MD: Naval Institute Press, 2007), 162-81.

A submerged Han-class nuclear-powered submarine of the Chinese People’s Liberation Army Navy (PLAN) entered Japanese territorial waters during the early morning hours of November 10, 2004, and passed submerged at about one hundred meters as it “wandered” in Japanese territorial waters for about two hours before exiting into international waters. Moving from south to north, the submarine passed through the Ishigaki Strait, which separates the islands of Ishigaki and Miyako at the southwestern edge of Japan’s Sakishima island chain. The submarine was on its return to Meigezhuang Naval Base near Qingdao from its operating area in the Philippine Sea.

While the submarine was still operating well south of Japanese waters, the Japanese Maritime Self-Defense Force (JMSDF) was perhaps tipped to the presence of the submarine from U.S. Navy intelligence sources, and the JMSDF began passive tracking of the sub and monitoring of its activities. The Japanese continued to monitor the Han passively as it operated in international waters south of Ishigaki Island, but when the submarine turned north toward Japanese territorial waters, Japanese aircra began using active sonar—which uses echoes from an emitted signal to provide trackers with a more precise location of their target submarine, and which is accepted among submariners as a warning signal. The submarine chose to ignore the warning and kept on its northward path through the strait.

As a result of the sub’s incursion, the JMSDF was put on an unusually high-level alert by order of the defense agency director, General Yoshinori Ono, for only the second time since the end of World War II. The JMSDF maintained track of the Han as it passed through the Strait and, once the alert order was issued, began more aggressive tracking of the Han in international waters until the sub passed well beyond the Japanese coastline. During this period the JMSDF tracked the submarine for more than two days with P-3C patrol planes, AWACS aircraft, and ASW-capable destroyers and SH-60J helicopters.

The intriguing aspect of this incident is not that the Chinese chose to send a submarine through the Ishigaki Strait—for many reasons, maritime states with submarine fleets occasionally send their submarines on underwater excursions into another country’s territorial waters. Nor perhaps, in a region increasingly tense over economic rights, maritime boundaries, and political maneuvering, should Japan’s assertive response have come as much of a surprise to anyone. What makes the Han’s incursion especially interesting are the international law implications of the submarine’s submerged passage through Japanese territorial waters and the strategic insights that attend them. …

Peter A. Dutton, “Carving Up the East China Sea,” Naval War College Review 60.2 (Spring 2007): 49-72.

It is a timeless and fundamental question: Must competition for scarce resources inevitably lead to conflict? Today, that age-old question is often asked in reference to the many sites in the world’s oceans in which neighboring coastal states are shouldering each other for the authority to claim the potentially vast sources of hydrocarbons embedded in the continental shelf and the fishing rights to the waters above it.

With more than a billion people to feed and a surging economy that demands ever more energy, the People’s Republic of China (PRC) has become one of the world’s fiercest competitors for the ocean’s resources. China’s oil consumption, already the second largest in the world after the United States, is forecast by some to grow to 590 million metric tons in 2020 (up from 220 million tons in 2000), nearly three-quarters of which will be imported by that time. By some estimates, gas and oil deposits in the central area of the East China Sea could go a long way to alleviating the energy deficit the country faces: the Chunxiao Natural Gas Development Project, an area of hydrocarbon exploitation by the Chinese, is publicly estimated to contain 65.2 billion cubic meters of natural gas and 12.7 million tons of oil. This development project, which involves American and European oil companies as minority stakeholders, lies in the heart of the disputed zone in the East China Sea. China has accommodated and cooperated to develop disputed areas with several other of its maritime neighbors and even to resolve some of those disputes amicably—most notably those with Vietnam, the Philippines, and Malaysia, with whom it shares overlapping claims in the South China Sea; nonetheless, the competition between China and Japan over the resources in the East China Sea remains confrontational, causing some concern that the competition for regional predominance between these two powerful nations could spark armed conflict if not carefully managed. …