Salami Slicing in the South China Sea

Posted on August 3, 2012

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China’s slow, patient approach to dominating Asia.

The Pentagon recently commissioned recommendations from the Center for Strategic and International Studies (CSIS) on its military basing plans in the Pacific. CSIS’s June 27 report recommended that the Pentagon reallocate forces away from Northeast Asia and toward the South China Sea. Specifically, CSIS called on the Pentagon to base more attack submarines in Guam, beef up the Marine Corps’ presence in the region, and study the possibility of basing an aircraft carrier strike group in Western Australia.

The South China Sea is undoubtedly heating up as a potential flashpoint. Disputes over territory, fishing rights, and oil leases have accelerated this year. A recent ASEAN conference in Phnom Penh, Cambodia, aimed at making progress on a code of conduct for the South China Sea, collapsed in acrimony and failed, for the first time in 45 years, to agree on a concluding joint statement. Vietnam and the Philippines were particularly upset that their Southeast Asian neighbors made no progress on a unified stance against Chinese encroachments in the sea.

The increase in U.S. military power in the region, called for by both the CSIS report and by U.S. Defense Secretary Leon Panetta in a June speech in Singapore, is designed in part to deter overt aggression, such as a sudden restart of the Korean War or a Chinese blitzkrieg against Taiwan. To the extent such scenarios are now considered highly remote, the U.S. military presence in the region is doing its job. But what about an adversary that uses “salami-slicing,” the slow accumulation of small actions, none of which is a casus belli, but which add up over time to a major strategic change? U.S. policymakers and military planners should consider the possibility that China is pursuing a salami-slicing strategy in the South China Sea, something that could confound Washington’s military plans.

Appendix 4 of this year’s annual Pentagon report on China’s military power displays China’s South China Sea claim, the so-called “nine-dash line,” along with the smaller claims made by other countries surrounding the sea. A recent BBC piece shows China’s territorial claim compared to the 200-nautical mile exclusive economic zones (EEZs) that the United Nations Convention on the Law of the Sea has granted to the countries around the sea. The goal of Beijing’s salami-slicing would be to gradually accumulate, through small but persistent acts, evidence of China’s enduring presence in its claimed territory, with the intention of having that claim smudge out the economic rights granted by UNCLOS and perhaps even the right of ships and aircraft to transit what are now considered to be global commons. With new “facts on the ground” slowly but cumulatively established, China would hope to establish de facto and de jure settlements of its claims.

The United States Navy Pacific Fleet Destroyers

In April, a naval standoff between China and the Philippines occurred when Chinese fishing vessels were caught inside the Philippines EEZ near Scarborough Shoal. The standoff broke up after several weeks without a resolution of the underlying legal issues. Separately, the Philippines now intends to begin drilling for natural gas in the Reed Bank near its Palawan Island, a program to which China objects. A Chinese naval frigate recently ran aground 90 miles off Palawan; last year, Chinese warships threatened to ram a Philippine survey ship near Reed Bank.

Across the sea, and on the eve of the ill-fated Phnom Penh summit, the China National Offshore Oil Corp. (CNOOC), a state-owned oil developer, put out a list of offshore blocks for bidding by foreign oil exploration companies. In this case, the blocks were within Vietnam’s EEZ — in fact, parts of some of these blocks had already been leased by Vietnam for exploration and development. Few analysts expect a foreign developer such as Exxon Mobil to legitimize China’s over-the-top grab of Vietnam’s economic rights. But CNOOC’s leasing gambit is another assertion of China’s South China Sea claims, in opposition to UNCLOS EEZ boundaries most observers thought were settled.

Finally, in June, the Chinese government established “Sansha City” on Woody Island in the Paracel chain, which China seized from South Vietnam in 1974. Sansha will be the administrative center for China’s claims in the South China Sea, to include the Spratly Islands near Reed Bank and Palawan, and Scarborough Shoal. China also announced plans to send a military garrison to the area.

China’s actions look like an attempt to gradually and systematically establish legitimacy for its claims in the region. It has stood up a local civilian government, which will command a permanent military garrison. It is asserting its economic claims by leasing oil and fishing blocks inside other countries’ EEZs, and is sending its navy to thwart development approved by other countries in the area. At the end of this road lie two prizes: potentially enough oil under the South China Sea to supply China for 60 years, and the possible neutering of the U.S. military alliance system in the region.

The collapse of ASEAN’s attempt to establish a code of conduct for settling disputes in the sea benefits China’s salami-slicing strategy. A multilateral code of conduct would have created a legitimate framework for dispute resolution and would have placed all claimant countries on an equal footing. Without such a code, China can now use its power advantage to dominate bilateral disputes with its small neighbors and do so without the political consequences of acting outside an agreed set of rules.

Meanwhile, The Pentagon intends to send military reinforcements to the region and is establishing new tactical doctrines for their employment against China’s growing military power. But policymakers in Washington will be caught in a bind attempting to apply this military power against an accomplished salami-slicer. If sliced thinly enough, no one action will be dramatic enough to justify starting a war. How will a policymaker in Washington justify drawing a red line in front of a CNOOC oil rig anchoring inside Vietnam’s EEZ, or a Chinese frigate chasing off a Philippines survey ship over Reed Bank, or a Chinese infantry platoon appearing on a pile of rocks near the Spratly Islands? When contemplating a grievously costly war with a major power, such minor events will appear ridiculous as casus belli. Yet when accumulated over time and space, they could add up to a fundamental change in the region.

Although seemingly a distant player in the drama, the stakes for the United States are high. Both the global and U.S. economies depend on freedom of navigation through the sea; $5.3 trillion of global trade passes through the South China Sea each year, $1.2 trillion of which passes through U.S. ports. Second, the United States has a strong interest in preventing any power from unilaterally rewriting well-established international maritime law to its liking. Finally, the credibility of the U.S. alliance system and its reliability as a security partner will be at stake.

A salami-slicer puts the burden of disruptive action on his adversary. That adversary will be in the uncomfortable position of drawing seemingly unjustifiable red lines and engaging in indefensible brinkmanship. For China, that would mean simply ignoring America’s Pacific fleet and carrying on with its slicing, under the reasonable assumption that it will be unthinkable for the United States to threaten major-power war over a trivial incident in a distant sea.

But what may appear trivial from a U.S. perspective could be vital to players like the Philippines and Vietnam, who are attempting to defend their territory and economic rights from an outright power grab. This fact may give these countries a greater incentive to be more aggressive than the United States in defending against China’s encroachments. And should shooting break out between China and one of these small countries, policymakers in Beijing will have to consider the reputational and strategic consequences of blasting away at a weaker neighbor.

Both the United States and ASEAN members would greatly prefer a negotiated code of conduct for resolving disputes in the South China Sea. But should China opt to pursue a salami-slicing strategy instead, policymakers in Washington may conclude that the only politically viable response is to encourage the small countries to more vigorously defend their rights, even if its risks conflict, with the promise of U.S. military backup. This would mean a reversal of current U.S. policy, which has declared neutrality over the sea’s boundary disputes.

The United States has stayed neutral because it doesn’t want to pre-commit itself to a sequence of events over which it may have no control. That approach is understandable but will increasingly conflict with security promises it has made to friends in the region and to the goal of preserving the global commons. Policymakers and strategists in Washington will have to ponder what, if anything, they can do against a such a sharp salami-slicer.

Robert Haddick

The Folly of UNCLOS

The U.N. Convention on the Law of the Sea is as much as anything else about fundamental disagreements between the U.S. and China. The U.S. shouldn’t sign up.

UNCLOS is deeply flawed. The U.S. Senate should be deeply skeptical of claims that, because it’s an international agreement, we should therefore accede as a matter of course. One can be all for the rule of law, yet conclude that United Nations Convention on the Law of the Seas has complicated rather than simplified maritime law and security.

UNCLOS enshrined customary maritime law, but it also contradicted it by extending national claims far to sea, well beyond traditional claims, in the form of sui generis Exclusive Economic Zones. By fiat, this creation of EEZs established new claims and conflicts that never before existed.  This strikes me not as smart lawyering, but rather as quite a bad idea.

Somewhere along the line, proponents of UNCLOS have adopted the argument that accession itself is the standard of behavior, and that having a seat at the table is of paramount importance.  This becomes particularly problematic where the United Nations is concerned.

Further, China has espoused the doctrine of strict enforcement of its self-perceived UNCLOS rights through military and political intimidation. Moreover, China has, based upon its unitary interpretation of UNCLOS, assumed rights in the EEZs that not only weren’t intended by the framers, but which are troubling in their implications. These rights would extend security as well as economic rights to the limits of the EEZ, and in so doing preclude even routine military surveillance. The widespread recognition of these fabricated rights would be the death knell of freedom of the seas, not its enablement. Furthermore, raising the ante of EEZ rights isn’t just problematic, but threatening in the old-fashioned sense – especially because, while the Chinese have prudently toned down their rhetoric in international fora, their aggressive operations in the maritime commons belie any notions that Beijing has moderated its opinions or policies regarding Chinese rights.

The particular issue of China within the UNCLOS accession debate has emerged only lately. I would suggest that earlier American endorsements of UNCLOS – every Chief of Naval Operations (CNO), for instance – are obsolete, and have been negated by new circumstances unimagined at the time of the convention’s framing.

The trouble is that bad law drives out good law. My bottom line is first, that law is not always the answer; and second, that this isn’t the time to call for UNCLOS accession. It is time, instead, for a clear-eyed debate on the merits and demerits of UNCLOS, in the wider perspective of the rise of China, where we are headed with Beijing, and the role of international law in affecting the ambitions of rising powers.

Standing for the rule of law doesn’t mean signing up for every proposition tabled in debate. Nor does it mean passing every bill proposed in a legislature. That’s the whole point of politics.

Besides, this isn’t a rule-of-law issue: this is a contract issue. There are good contracts, and there are bad contracts. UNCLOS is a bad contract, and getting worse because the environment to which it pertains has changed dramatically since it was drafted. Fundamentally, its merits are debatable, and whether or not we sign up to it is an option, and should not be perceived as an obligation. Perhaps one way to express this is to say that what is acceptable with regard to UNCLOS is not new, and what is new isn’t acceptable.

Whether or not you think that the contract analogy works, there are good laws and bad laws. Our legal system, domestic as well as international, isn’t meant to be a suicide pact, and there are procedures for demurring and for opting out.  UNCLOS becomes a rule-of-law issue when we sign up to it.

Besides, we are adhering to UNCLOS. It’s the Chinese that are trying to redefine UNCLOS according to their own purposes, without re-negotiating the contract, and in so doing undermining customary law – the latter being not immutable, but one had better have a darn good reason for changing it.

At the tactical level, I don’t believe for a moment that acceding to UNCLOS is going to improve our negotiating position with the Chinese, or change minds in Beijing. The differences at issue are far too substantial for that.

Finally, I also don’t for one moment believe that adherents of accession to UNCLOS are prepared for, or even intend to join, the furor that would ensue if joining were followed by a strenuous defense of and insistence upon customary, and never more necessary, rights of free passage.

In the final analysis, the UNCLOS issue is as much as anything else, and more than most, the manifestation of the fundamental and systemic disagreement and contest now in place between the United States and China. We need to join that contest at times and places of our own choosing.

Paul S. Giarra is the president of Global Strategies & Transformation, a national defense and strategic planning consultancy.

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Posted in: Politics