And just like the past two exercises, Washington did not object to the Chinese ship’s presence — which is not the response received from Beijing when US and other navies conduct similar activities in China’s (claimed) EEZ. Instead, more often than not China admonishes the offending nation for violating its claimed territorial sovereignty and sometimes even harasses the military units themselves.
While not unprecedented and not in violation of international law, the spy ship’s deployment into the United States’ EEZ reminds the world that China is a rising power that is willing to fully leverage its interpretation of maritime rights under the United Nations Convention on the Law of the Sea (UNCLOS). This underscores Beijing’s selectively choosing the parts of UNCLOS that it likes and ignoring or reinterpreting the parts that it does not like or finds inconvenient for its national interests. Beijing clearly understands its own maritime rights, but it does not necessarily tolerate and accept the same rights for others.
The Chinese argument on the (non)permissibility of military activities in the South China Sea is counter to the US position that coastal states have the right under UNCLOS to regulate economic activities in their own EEZ but do not have the right to regulate foreign military activities in it.
Beijing contends that military activities (such as intelligence surveillance reconnaissance flights, maritime survey operations, maritime collection operations and military exercises) on the high seas and in EEZs are unlawful based on the legislative spirit of UNCLOS and on UNCLOS’s requirement that the high seas be used only for peaceful purposes.
US legal scholars and diplomats have counter-argued that military activities have been a recognised lawful activity on the high seas and EEZs under customary international law and are preserved under Article 58 of UNCLOS. The international community by and large agrees with Washington — only 27 states concur with Beijing’s interpretation of UNCLOS, while the majority of states (over 100, including all permanent United Nations Security Council members other than China) hold Washington’s position.
That being said, there is another perspective worth mentioning for additional context. Just as China conveniently demands that other nations observe its domestic laws when it instructs ships in its EEZ to leave, China is simply following other nations’ domestic laws when it conducts surveillance in those countries’ EEZs. Granted, although China’s laws in this regard are illiberal while most other countries’ laws are liberal, the principle being observed arguably may be the same.
Nevertheless, as the People’s Liberation Army Navy continues to operate in distant waters and in proximity to other nations’ coastlines, Beijing may have no choice but to eventually address the inconsistency between its demands of other nations and its own actions. It can either adjust its standing approach or continue to assert its untenable authority to regulate military activities in its EEZ. The former is more likely, while the latter carries more risks (and eventually costs) in terms of the legal validity of its own maritime sovereignty claims, international credibility and world standing.
Regionally, continued ‘do as I say and not do as I do’ will exacerbate the growing concerns among its nervous neighbours about China’s ‘benevolent’ rise and will cast increasing scepticism on its sincerity and commitment to comply with the ASEAN Code of Conduct guidelines to handle maritime disputes in the South China Sea. Globally, this inconsistency will undercut Beijing’s carefully crafted and cultivated international image as a defender of global trade and will undermine its strategic goals of promoting its geopolitical influence abroad and displacing the Western-oriented world order with one without dominant US influence.
Beijing has begun incrementally and subtly adding nuance to its legal and diplomatic positions at various diplomatic, academic and media forums. Beijing now appears to not necessarily object to intelligence-gathering operations and military exercises in China’s EEZ per se; rather, they object to the scope, scale and frequency of these activities. They also seem to no longer view such activities as intrinsically unlawful under international law but rather as threatening to China’s peace and security as well as destabilising for the region.
Despite these efforts, at the end of the day, Beijing is conveniently disregarding UNCLOS and accepted international norms to support its own national interests and complement its strategic narratives. This is counterproductive, since Beijing needs the international community to believe that its commitments to uphold international law are sincere and credible — especially in the maritime trade realm on which its growing economy relies. Similarly, the world needs a rising China to be a responsible global leader respectful of the rule of law and compliant with global norms.
Tuan Pham is widely published in national security affairs. The views expressed are his own and do not reflect the official policy or position of the US Government.
A very well written article, providing a deep insight into the Chinese approach beyond its borders.
As mentioned in my comments in the article “The world is pushing back in the South China Sea” dt. 29 June 2018, the conventional protocols and conduct have been undermined by China. Whilst salami slicing / human shields are the Chinese warfare protocols / platforms for gun-diplomacy, the other Chinese warfare protocols / platforms are undermining international law (as detailed in this article), cyberwarfare, space warfare, trade warfare, technology theft, labor dumping, capital dumping, goods dumping etc., to mention a few.
To look at an issue in isolation is fallacious as this initiative by China is multi pronged / across the spectrum – the SCS is just the beginning.
Unlike democracies where private firms have to earn & grow independently, Chinese private firms do their government bidding because of government subsidized finance. Chinese MNCs are extensions of the government and their presence in other countries needs to be scrutinized.
China, and its citizens under the dictatorship of the central party, boycotted Lotto to protest US missile deployment in S Korea. Same was done with Japanese firms operating in China due to island disputes.
The approach by China is a reflection of cross retaliation being the norm. China uses the platform of their choice / where they are strong – business to settle military disputes and vice versa.
Dictatorships cannot be extended the courtesies prevalent in democracies like freedom to chose, be it a leader or the goods citizens buy – it is incorrect to grant equity in vogue in democracies to inequity in vogue in dictatorships.
Creating proxy states like Pakistan / North Korea and arming them with nuclear weapons is another strategy, reflecting Chinese dual standards. Thereafter, protecting these proxies to proliferate WMDs is another strategy. Because of Pakistan being a protectorate of China, Pakistan has proliferated WMDs to Libya, Syria and Iran. And with N Korea, ASEAN is threatened.
A proposal should be passed to remove China from the UN P-5 due to all the proliferation and other initiatives.
1 “providing a deep insight into the Chinese approach beyond its borders.”
Your own country, India, apparently disagrees with you because India is now a member of the SCO.
2.”salami slicing” again?
It is Vietnam which is doing the salami slicing because the writer, Tuan N Pham admitted: “Hanoi has made small and incremental upgrades to 21 of its 49 outposts in recent years (in the SCS).”
Also since its independence in 1947 from the British Raj, India has annexed these territories and violated China’s sovereignty:
1947 annexation of Kashmir; 1949 annexation of Manipur and of Tripura; 1951 annexation of China’s Southern Tibet; 1954 annexation of Nagaland but the attempted annexation of Sikkim and Bhutan (Failed); 1961 annexation of Goa; 1962 annexation of Kalapani, Nepal; 1971 annexation of Turtuk, Pakistan; 1972 annexation of Tin Bigha, Bangladesh; 1975 annexation of Sikkim (the whole country); 1983 attempted invasion of Mauritius; 1990 attempted annexation of Bhutan; 2006 Annexation of Duars, Bhutan; 2013 Annexation of Moreh, Myanmar; 2017 crossed the Sikkim-Tibet border into the Dolam plateau and violated China’s sovereignty.
3 “the other Chinese warfare protocols / platforms are undermining international law”
This is not true. China does not want a war because she is the biggest beneficiary of peace in the last 73 years and has become the largest trading nation on Earth.
4 “Unlike democracies where private firms have to earn & grow independently, Chinese private firms do their government bidding because of government subsidized finance.”
You are naive. It’s time for you to read how Paul Craig Roberts exposes the all-pervasive Military Industrial Complex in the democratic United States.
https://www.zerohedge.com/news/2018-07-27/paul-craig-roberts-exposes-all-pervasive-military-security-complex
5 “China, and its citizens under the dictatorship of the central party,”
If that is true then why is that 120 million rich Chinese can afford to go for vacations in the liberal West every year and then come home on their own volition? Why not stay back in Paris, London, New York, Los Angeles and San Francisco or even in Kolkata?
6 “Because of Pakistan being a protectorate of China”,
In case the nuance escapes you, Pakistan is a sovereign state and it has the right to protect itself with whatever means it has. It is not a protectorate of any country.
7 “Pakistan has proliferated WMDs to Libya, Syria and Iran.”
Like India, Pakistan is not a signatory of the NPT and it is not bound by its provisions. If India can develop nuclear reactors why can’t other nations? If Libya and Iraq had nukes they would not have been bombed into near oblivion by the US and its allies’ coalition of the killing from the liberal Western democracies.
8 “And with N Korea, ASEAN is threatened”
You are behind time. The DPRK has agreed with Trump last month to denuclearize the Korean peninsula and it has never been a threat to ASEAN.
9 “A proposal should be passed to remove China from the UN P-5 due to all the proliferation and other initiatives.”
By who?
1 How is it possible to take the writer, Tuan N Pham, Treasurer of the Yokosuka Council on Asia-Pacific Studies, seriously when he keeps accusing China of “pick and choose” from the Law of the Sea by dispatching “a spy ship into the United States’ exclusive economic zone (EEZ) to monitor the world’s largest international maritime exercise” and then in the next breath contradicts himself, once again, by admitting that “While not unprecedented and not in violation of international law, the spy ship’s deployment into the United States EEZ reminds the world that China is a rising power that is willing to fully leverage its interpretation of maritime rights under the United Nations Convention on the Law of the Sea (UNCLOS)”?
2 The writer also fails to explain how the United States can legitimately claim an EEZ when it refuses to ratify the UNCLOS since it came into force in 1994. If this is not a case of ‘pick and choose from the Law of the Sea’ that he repeatedly attributes to China, then what is?
3 The danger of constantly urging the United States to go to war in the South China Sea is that it can become a self-fulfilling wish (though I think the US Secretary of Defense, James Mattis is a lot smarter than the writer not to fall into the trap of a nuclear war over rocks and islands, which the US has no claim).
The writer also risks igniting a conflagration in the littoral states, like in his own country, Vietnam, which has already suffered enough under the brutal colonial wars with the French from circa 1884 to the battle of Dien Bien Phu in 1954 and like a decade of the immoral Vietnam War in the 60s and 70s, manufactured by the US Military-Industrial-Complex by conflating a raison d’etre for a profitable war with the egregious lie that small Vietnamese patrol craft allegedly had the temerity to attack heavily-armed US Navy warships in the infamous Gulf of Tonkin incident.
Lest the writer also forgets the Vietnam War killed over 3 million Vietnamese, including the genocide at the My Lai village. He may not remember but the US military dropped more bombs into Vietnam that all the bombs dropped in WW2 in Europe combined. They then mercilessly poured into his country 21 million gallons of carcinogenic Agent Orange, which are, sadly, still causing deformed births and horrific cancers in Vietnam.
4 As for his repetitive and flawed takes on Article 58(3) of UNCLOS, it is not rocket-science. Anyone who can read will understand Article 58 (3), which clearly states that:
“In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the LAWS AND REGULATIONS ADOPTED BY THE COASTAL STATES in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.” (Emphasis mine).
The United States disagrees with Article 58 (3) simply because it does not recognise UNCLOS, which is the only international law of the sea on Planet Earth.
According to Professor Myron Nordquist, the Associate Director and Editor of the Center for Oceans Law and Policy at the University of Virginia and also a Senior Fellow at the Center for National Security Law, at the University of Virginia School of Law, a law expert who spent more than 30 years on maritime law studies, including being editor in chief of a seven-volume commentary on the United Nations Convention on the Law of the Sea:
The “United States doesn’t even recognize the tribunal (initiated under UNCLOS by the Philippines). Everyone in the Western press believes China is really being the bad guy, and they are only getting half of the story.”
5 Lastly, let me repeat a friendly reminder to the writer that his readers cannot fully benefit from this ‘strategic dialogue’ unless he explains clearly to them, with evidence of course, why he believes that the Paracel and Spratly Islands belong to Vietnam since the 17th century, so that we can all have a good laugh.
Thank you to all for taking time out of your busy schedule to read the article, and more importantly, provide commentaries. Your contributions add to the strategic dialogue on this topic, and offer the EAF readers other perspectives to consider and come to own conclusions. The readership is a sophisticated audience who can discern fact from opinion and truth from inconsistency.
All in all, I may not necessarily agree with your points. I nevertheless applaud your willingness and passion to share your viewpoints to others. I sincerely hope that you consider writing own article(s) in the near future. Thank you again.
1 “I sincerely hope that you consider writing own article(s) in the near future.”
Here is another article of mine that should interest the writer who lives in Japan. His commentary is welcome.
http://www.eurasiareview.com/15022016-is-abe-paving-the-way-for-a-resurgence-in-japanese-militarism/
2 To benefit from the ‘strategic dialogue’ the readers are still waiting, with bated breath, to know why the writer believes that the Spratly and Paracel Islands belong to Vietnam since the 17th century, a flawed belief that seems to be driving his virulent anti-China rhetoric.
To KTTAN: I appreciate and respect your passion and perspectives. Please continue to contribute to the strategic dialogue.
Two closing remarks for your kind consideration:
(1) Nowhere in this article or past articles have I asserted or implied that the Spratly and Paracel Islands belong to Vietnam since the 17th century. You must have mistaken me for another author or mistakenly assume (or wrongly attribute) my heritage to the official positions of Hanoi.
(2) “Civil and respectful” discourse enlightens and benefits all and constructively adds to the strategic dialogue.
To TUAN N PHAM: Thank you for your kind words.
1 Background: In a White Paper published in 1975 Vietnam claimed: “Evidence showing Vietnamese sovereignty over the Hoang Sa Islands extends back over three hundred years. The oldest Vietnamese document on this part of the national heritage is the work done sometime between 1630 and 1653 (17th Century)…The Government of the Republic of Vietnam and the Vietnamese people, determined to defend their sovereignty and the territorial integrity of the country..”.
Since these flawed claims were indoctrinated into all Vietnamese, in my view, it was a legitimate request for you to explain to your readers why you believe that “the Spratly and Paracel Islands belong to Vietnam since the 17th century”.
Since you have confirmed that you have not made such assertions or implied them in your articles, I accept your words and take it that you do not agree with Vietnam’s claims.
This is wise because History shows that Vietnam as a sovereign country did not exist in the 17th century.
It was only in 1802 that Emperor Gia Long ascended the throne and named the unified peninsular “Vietnam”, after the name “Nam Viet” was not approved by the Qing Emperor.
According to Dr Stein Tonnesson, “In the 1910s–20s, the French Ministry of Colonies and the Ministry of Foreign Affairs more or less agreed that the Paracel Islands were under Chinese sovereignty, and that France should not try to claim them either on behalf of itself or Annam.”
But France later deceptively annexed nine features in the Spratlys in 1933 and the Paracel in 1938 in blatant violation of the Covenants of the League of Nations but France was evicted by the Japanese in 1939.
History shows that after WW2, Japan returned the Paracel and Spratly Islands to China (not to Vichy France or Vietnam) in accordance with the Potsdam (1945) and Cairo (1943) Declarations, signed by the Great Allies: US, UK, China and Russia. Vichy France was allied to Nazi Germany in WW2.
2 On 25 July 1994, Vietnam ratified UNCLOS. Please explain how could you justify that “Hanoi has made small and incremental upgrades to 21 of its 49 outposts in recent years (in the SCS)”, without violating UNCLOS and the rule of law as she has no valid claims?
3 Though I agree we should conduct a “civil and respectful discourse”, I must point out that your gratuitous polemics against China, based on fiction, are anathema to a constructive strategic dialogue.
In case the nuance escapes you, the purpose of a Strategic Dialogue is to foster better understanding among nations, reduce tension/animosity and prevent a war from breaking out, especially between the whales. Paradoxically, in my view, you are doing exactly the opposite.
And in this strategic dialogue you are entitled to exercise your freedom of speech but not your freedom with facts, without being challenged vigorously.
For example, you have stated these fictions in your articles:
a) The SCS ruling was made by an “International Tribunal”. That is simply not true. The ruling was made by ad hoc arbitral tribunal set up by the Philippines, with the Japanese head of ITLOS conveniently appointing 4 of the 5 “arbitrators”, all expenses paid for by the Philippines. It had nothing to do with the UN. The PCA is not a court. President Duterte has set it aside because it is worthless.
b) The alleged “Chinese Double Standards in the Maritime Domain.”
This is another untruth. China ratified UNCLOS in 1996 while the US has chosen not to do so since 1994 when it came into force. So how could you then claim a 200nm EEZ for the US?
c) According to Ronald O’Rourke “the US-led international order, that has operated since World War II, is the treatment of the world’s seas under international law as international waters and freedom of operations in international waters.”
It’s clear that the US disagrees with Article 58 (3) simply because it has repudiated UNCLOS which is the only international law of the sea on Planet Earth. How can the US observe the rule of law when it does not even recognise the UN Law of the Sea?
d) You wrote these inflammatory words: “More Chinese assertiveness and unilateralism are coming. Recently, worrying developments have emerged that oblige the United States to further challenge China to become a more responsible global stakeholder that contributes positively to the international system. Otherwise, passivity and acquiescence undermine the new U.S. National Security Strategy; and may further embolden China…”
Instead of stridently urging the US to go to war over rocks and islands in the SCS, which it has no claims, I urge you to observe your own plea for a “civil and respectful” discourse, tone down the rhetoric and predicate your argument on facts.