[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 114-140]
SEAPOWER AND PROJECTION FORCES
IN THE SOUTH CHINA SEA
__________
HEARING
BEFORE THE
SUBCOMMITTEE ON SEAPOWER AND PROJECTION FORCES
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD
SEPTEMBER 21, 2016
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
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SUBCOMMITTEE ON SEAPOWER AND PROJECTION FORCES
J. RANDY FORBES, Virginia, Chairman
K. MICHAEL CONAWAY, Texas JOE COURTNEY, Connecticut
BRADLEY BYRNE, Alabama JAMES R. LANGEVIN, Rhode Island
ROBERT J. WITTMAN, Virginia RICK LARSEN, Washington
DUNCAN HUNTER, California, Vice MADELEINE Z. BORDALLO, Guam
Chair HENRY C. ``HANK'' JOHNSON, Jr.,
VICKY HARTZLER, Missouri Georgia
PAUL COOK, California SCOTT H. PETERS, California
JIM BRIDENSTINE, Oklahoma TULSI GABBARD, Hawaii
JACKIE WALORSKI, Indiana GWEN GRAHAM, Florida
RYAN K. ZINKE, Montana SETH MOULTON, Massachusetts
STEPHEN KNIGHT, California
STEVE RUSSELL, Oklahoma
Dave Sienicki, Professional Staff Member
Phil MacNaughton, Professional Staff Member
Jodi Brignola, Clerk
C O N T E N T S
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Page
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Courtney, Hon. Joe, a Representative from Connecticut, Ranking
Member, Subcommittee on Seapower and Projection Forces......... 9
Forbes, Hon. J. Randy, a Representative from Virginia, Chairman,
Subcommittee on Seapower and Projection Forces................. 1
WITNESSES
Erickson, Dr. Andrew S., Ph.D., Professor of Strategy, China
Maritime Studies Institute, U.S. Naval War College............. 7
Glaser, Bonnie S., Senior Adviser for Asia and Director, China
Power Project, Center for Strategic and International Studies.. 2
Kraska, Dr. James, S.J.D., Professor of International Law, Oceans
Law and Policy, Stockton Center for the Study of International
Law, U.S. Naval War College.................................... 4
APPENDIX
Prepared Statements:
Courtney, Hon. Joe........................................... 33
Erickson, Dr. Andrew S....................................... 74
Forbes, Hon. J. Randy........................................ 31
Glaser, Bonnie S............................................. 35
Kraska, Dr. James............................................ 46
Documents Submitted for the Record:
[There were no Documents submitted.]
Witness Responses to Questions Asked During the Hearing:
[There were no Questions submitted during the hearing.]
Questions Submitted by Members Post Hearing:
Mr. Langevin................................................. 93
SEAPOWER AND PROJECTION FORCES IN THE SOUTH CHINA SEA
----------
House of Representatives,
Committee on Armed Services,
Subcommittee on Seapower and Projection Forces,
Washington, DC, Wednesday, September 21, 2016.
The subcommittee met, pursuant to call, at 3:55 p.m., in
room 2212, Rayburn House Office Building, Hon. J. Randy Forbes
(chairman of the subcommittee) presiding.
OPENING STATEMENT OF HON. J. RANDY FORBES, A REPRESENTATIVE
FROM VIRGINIA, CHAIRMAN, SUBCOMMITTEE ON SEAPOWER AND
PROJECTION FORCES
Mr. Forbes. Today this subcommittee convenes to receive
testimony on seapower and projection forces in the South China
Sea. Providing testimony today are Ms. Bonnie S. Glaser, Senior
Adviser for Asia and Director, China Power Project, Center for
Strategic and International Studies [CSIS]. Thank you so much
for being with us. Also, Dr. James Kraska, Professor of Oceans
Law and Policy, U.S. Naval War College. Thank you for joining
us, James. And also, Dr. Andrew S. Erickson, Professor of
Strategy, China Maritime Studies Institute at the U.S. Naval
War College. And, Andrew, we thank you for being here as well.
Our topic today is the South China Sea and the role that
America's seapower and projection forces can play in
maintaining peace, prosperity, and the rule of international
law in that critical body of water. Like Berlin in the Cold
War, the South China Sea has become a symbol and a flashpoint
of the increasingly competitive relationship between two great
powers, a place of both inherent and symbolic importance.
Over the last few years, it has become the place that the
world is watching to see how the balance of power in Asia is
changing and to measure America's willingness and ability to
deter coercion and aggression in that important region. While I
approve of very few of this administration's foreign policies,
I do believe that their early instinct to devote more resources
and attention to the Indo-Asia-Pacific region was correct. That
said, more than rhetoric is required to counterbalance China's
growing military power and assertiveness. Last year, myself,
Chairman Thornberry, and 27 other members of this chamber
signed a letter to the President and the Secretary of Defense,
calling upon them to take a stronger stance in the South China
Sea, to increase U.S. military presence in this critical
region, and ramp up our freedom of navigation [FON] operations
in disputed waters. I have been pleased to see that some of
that has occurred, especially in the sensitive period around
the U.N. Law of the Sea ruling.
At the same time, however, I think it is clear that more is
needed to defend our allies and our interests in the region.
Despite the ruling, Beijing is still laying claim to almost all
of the entire sea. Work on China's artificial features
continues apace, with much of it clearly military in nature.
China's military and paramilitary forces continue to wage a
campaign of gray-zone aggression and increase their presence
and activity in the region. All in all, the trends seem to be
toward China's de facto control of this vital body of water.
With the end of the Obama administration approaching, I
believe we are entering a time of both vulnerability and
opportunity. I am concerned that China's president and the
Chinese Government may see President Obama's last few months as
a window of opportunity for establishing an air defense
identification zone [ADIZ], expanding reclamation activities to
Scarborough Shoal, accelerating the militarization of the
artificial features or some move that will test our resolve. I
think it is critically important that we deter such activities
in the months ahead.
At the same time, I also see an opportunity for a new
administration to take a new and stronger stance on the South
China Sea, and redouble our efforts to maintain peace and
stability in the Asia-Pacific region. I have my own thoughts on
what we must do as a nation, but I look forward to hearing from
our witnesses how we can better deter Chinese aggression,
reassure our allies and partners, and maintain a stable
military balance in the Asia-Pacific region going forward.
When Mr. Courtney gets here, if he has any opening remarks,
we will defer to him at that particular point in time. But now
we would like to hear from our witnesses. As Mr. Courtney and I
mentioned to you at the outset, your written testimony will be
made part of the record. We look forward to any comments that
you might have, and we would love to get your thoughts at some
point throughout this hearing on just why it is important that
we even look at the South China Sea for individuals living in
States across our country who may say, why are we even
concerned about it? And the second thing, we always know that
there are risks if we have the wrong actions, but what risks
are there if we have no actions as we see in many situations in
the South China Sea, if you could elaborate on those.
With that, Ms. Glaser, we would love to have you start us
off and love to hear any comments that you might have.
[The prepared statement of Mr. Forbes can be found in the
Appendix on page 31.]
STATEMENT OF BONNIE S. GLASER, SENIOR ADVISER FOR ASIA AND
DIRECTOR, CHINA POWER PROJECT, CENTER FOR STRATEGIC AND
INTERNATIONAL STUDIES
Ms. Glaser. Thank you, Chairman Forbes, Ranking Member
Courtney, members of the House Subcommittee on Seapower and
Projection Forces. I appreciate the opportunity to testify
before you today.
The United States has a great deal at stake in the South
China Sea. We have a national interest in freedom of
navigation, particularly open access to Asia's maritime
commons. We have an abiding interest in the compliance with
international law, including the July 12 UNCLOS [United Nations
Convention on the Law of the Sea] tribunal ruling. We certainly
have an interest in the peaceful resolution of disputes and the
lack of coercion by big powers against smaller powers. And, of
course, we have a very important interest in ensuring the
security of our allies and our partners. All of these interests
that I have enumerated I see as under challenge today from
China. Chinese statements and actions in the South China Sea
suggest that China seeks to, over time, gain control over the
waters and the airspace in the South China Sea. After the
tribunal issued its ruling, the Chinese Government issued what
is a very highly authoritative and unusual statement that cited
a series of claims, including to historic rights in all of the
waters, but also to internal waters. And a few days after that,
the commander of the PLA [People's Liberation Army] Navy,
Admiral Wu Shengli, told CNO [Chief of Naval Operations]
Admiral John Richardson that the South China Sea is a Chinese
core interest. That indicates that Beijing will resist making
concessions, and it is a warning to the United States to tread
carefully. That is the first time that that statement has been
made very openly and clearly and reported in the Chinese media.
Acquiring greater control over the South China Sea may well
be a key step in a long-term Chinese strategy to constrain, or
even block, the U.S. Navy's access to the region and to
maneuverability within the waters of the first island chain. If
this is Chinese objectives, and we don't know for sure because
Beijing has not made its goals clear, this is very worrisome.
So I agree with you, Congressman Forbes, that there is a
potential of China taking advantage of the final months of the
Obama administration, or maybe even the transition, the
upcoming election, and the first few months of a new President.
The Chinese are known to test the resolve of American
Presidents in the early months. We have already seen some
potential evidence that the Chinese may dredge on Scarborough
Shoal. A military outpost on that feature would enable China to
deploy radar, aircraft, cruise missiles within range not only
of Manila, but also of several Philippine bases to which the
United States has recently gained access under EDCA [Enhanced
Defense Cooperation Agreement].
Up until now, we have seen a dynamic where China has been
careful to avoid directly challenging the United States in the
South China Sea. It has rather used, you know, incremental
actions, what could be referred to as a salami slicing, which
had not provoked a U.S. military response. I think it is
uncertain whether China will continue this strategy going
forward. Xi Jinping could decide to proceed with construction
at Scarborough Shoal to bolster his domestic political position
in advance of the 19th Chinese Communist Party National
People's Congress, which will be held in November 2017.
So I believe and share your views, Congressman, that the
Obama administration's rebalance to Asia has been important. It
has achieved some success. There is, of course, much more that
we can do. Steps to bolster U.S. diplomatic engagement and
military presence have been welcomed throughout the region, but
wherever I go in Asia, I hear in every capital, not only our
allies, but our partners, that American will and ability to
sustain its commitment going forward is questioned. The region
is highly uncertain about what the United States is going to
do, in part because of the uncertainty of who will be
President, but also because they worry that we may be
distracted by crises elsewhere.
So I have enumerated in my testimony a number of things
that I think the U.S. should do going forward. I will just
enumerate a couple here, and we can discuss them in greater
detail if you wish. The U.S. should continue to publicly and
privately call on Beijing to comply with this tribunal award
and encourage countries to do the same. We should continue to
warn Xi Jinping that land reclamation on Scarborough Shoal,
declaration of an air defense identification zone in the South
China Sea, or other destabilizing behavior, will be viewed with
grave concern and result in a very strong U.S. response.
We should resume our freedom of navigation operations in
the South China Sea. We should conduct them regularly. Such
missions should be carried out, I think in the future, quietly
and without fanfare.
The Maritime Security Initiative is very, very important.
We need to provide more funding. I would advocate that the full
request of $60 million for the Maritime Security Initiative be
granted and that the members here support the Senate's State
Foreign Operations Appropriations Bill, which has called for
increasing the appropriation for the Department of State's FMF
[Foreign Military Financing Account] and IMET [International
Military Education and Training Account] for Asia.
I support ratification of UNCLOS. I think that it is no
longer sufficient that the United States adheres to UNCLOS as
customary law. If the principles and practices that are
embodied in the Convention on Law of the Sea are critical to
American interests, then the U.S. should ratify the treaty. So
I will stop there and look forward to your questions. Thank
you.
[The prepared statement of Ms. Glaser can be found in the
Appendix on page 35.]
Mr. Forbes. Thank you so much. Dr. Kraska.
STATEMENT OF DR. JAMES KRASKA, S.J.D., PROFESSOR OF
INTERNATIONAL LAW, OCEANS LAW AND POLICY, STOCKTON CENTER FOR
THE STUDY OF INTERNATIONAL LAW, U.S. NAVAL WAR COLLEGE
Dr. Kraska. Thank you very much, Chairman Forbes and
Ranking Member Courtney, and members, for the opportunity, the
invitation, to speak about the rule of law in the oceans, which
I believe are the normative basis for seapower and projection
forces globally. In the South China Sea, we face strategic
risk, a military threat, and political challenge, and there is
a legal dimension to all of these issues, which is a continuous
struggle to shape and form the rules and the regimes, the laws
and the norms, in the global commons. So I would encourage
people to view the problems, the issues in the South China Sea,
as a Chinese dimension of a global issue, which is that the
rules for navigation and overflight are essential for the
primacy of American power, and it is really the key enabler for
U.S. grand strategy. This is why I believe that the issues in
the South China Sea matter for the United States, and should
matter for people in the U.S. everywhere.
It is because the United States is connected to its friends
and allies and partners throughout the world through the oceans
and the airspace, and so the rules that apply to the maritime
zones are critical for the U.S. position in the world. In fact,
it has always been this way. The first war that the United
States fought as an independent country was the Quasi-War with
France in 1798 to 1800. It was over the issue of freedom of
navigation and unimpeded access to the global commons. The
second war that the United States fought was the First Barbary
War. It was also over freedom of navigation. The third war that
the United States fought as an independent country was the War
of 1812 over, again, freedom of navigation and the impressment
of American sailors from U.S. ships. The fourth war that we
fought was the Second Barbary War when we put a stop to the
odious practice of slave trafficking off the North African
Coast.
And it goes on and on. Of course, in World War I and World
War II, these wars were principally about whether a hegemonic
power would emerge in Europe or in Asia, and the maritime space
was the lifeline for the United States to be able to maintain
connectivity and prevent the emergence of a hegemonic power.
So I view the South China Sea today as the fulcrum, not
just of power in East Asia, but really a fulcrum of freedom of
navigation throughout the globe. So there is no national
security issue in my view that is more important.
I have provided written testimony that contains a number of
recommendations on strengthening the U.S. resolve in freedom of
navigation and overflight throughout the global commons, and,
in particular, in the South China Sea, and what I describe are
four lines of efforts. The first is that there is already a
governing U.S. policy on freedom of navigation in the oceans.
It is a 1983 Ocean Policy Statement by President Reagan, which
was made on March 10 of that year, which says that the United
States does accept all of the navigational principles that are
included in the U.N. Convention on the Law of the Sea, and that
we will recognize that all countries have those rights. But
there is a part of that that has been forgotten, which is that
the Reagan statement says we will recognize other countries'
rights so long as they respect American rights and American
freedoms that are reflected in that convention.
My view is that the United States should be more true to
that policy and when appropriate, implement countermeasures,
lawful countermeasures, against countries such as China to
induce compliance with international law, meaning that I would
recommend not recognizing Chinese rights to operate in the
American territorial sea or in the U.S. exclusive economic zone
with military warships and aircraft if China tries to deny that
right to the United States. The U.S. should inform Chinese
warships and military aircraft that they are no longer entitled
to conduct innocent passage in the U.S. territorial sea, as
they did through the Aleutian Islands last year, or conduct
military activities in the United States exclusive economic
zone, as they now routinely do off the coasts of Hawaii and
Guam, and inform them that this is not a reciprocal or a tit-
for-tat, but, rather, that this is a lawful countermeasure in
international law.
I would also bolster the FON program, and a couple of the
things that I would recommend is to conduct combined FON
operations with other countries, such as Japan, because freedom
of navigation is not just a American issue; it is a global, it
is a multilateral issue, and all countries that are peace-
loving and trade freely have an interest in freedom of
navigation in the global commons.
I would also prioritize for the FON program the many, many
illegal claims that have never been challenged, to my
knowledge, such as the straight baselines that cut off the
Hainan Straits, which China purports to view as internal
waters, and that challenge has never been conducted, as far as
I know, or at least most likely since the Vietnam war.
The third thing is I would leverage the arbitration award,
the July 12 arbitration under the U.N. Convention on the Law of
the Sea, and in particular, that 500-page award delineates a
number of illegal actions by China that ought to be considered
by multilateral organizations that are in charge of those issue
areas. For example, there are numerous violations by China of
the Collision Regulations [COLREGS], which is under the
auspices of the International Maritime Organization. There is
also violations by China of the International Civil Aviation
Organization rules that flow from the 1944 Chicago Convention
on Civil Aviation.
Similarly, there is misuse of fishing vessels as a maritime
militia, which ought to be discussed before the Food and
Agricultural Organization of the United Nations. So there are
multilateral efforts that we have not taken advantage of that
we could.
And the fourth thing, I would join my colleague, Bonnie
Glaser, and say that I believe that the United States should
join the U.N. Convention on the Law of the Sea because
ultimately, of course, the United States relies on its Armed
Forces, including its naval forces especially, to ensure that
it has freedom of navigation in the global commons. But I
believe that we operate stronger under the color of law, and
with greater legal and moral authority and clarity if we were
to join the Convention. In particular, although I understand
and accept that the Convention reflects customary international
law and is binding on all states, nonetheless, it resonates
with our friends and allies and partners around the world. That
is, they very much are interested in us doing so, and in my
view, as a champion of the rule of law, in international law,
this affords the United States a unique locus of power, which
we have not yet leveraged.
I don't expect that China will suddenly begin to comply
with the Law of the Sea Convention if the United States becomes
a party to it, and I would view that as not the end of the
process, but, rather, just a continuation of the struggle to
shape the law in the oceans, and in particular, in the South
China Sea. Thank you.
[The prepared statement of Dr. Kraska can be found in the
Appendix on page 46.]
Mr. Forbes. Thank you. Dr. Erickson.
STATEMENT OF DR. ANDREW S. ERICKSON, PH.D., PROFESSOR OF
STRATEGY, CHINA MARITIME STUDIES INSTITUTE, U.S. NAVAL WAR
COLLEGE
Dr. Erickson. Chairman Forbes, Ranking Member Courtney,
members. In the South China Sea, Beijing is employing not one,
but three major sea forces, fleets of navy gray hulls, coast
guard white hulls, and maritime militia blue hulls. Today, I
want to tell you why so much is at risk if more isn't done to
address China's maritime militia, China's third sea force. So
much is knowable about this third sea force through open
sources alone. I have got a stack of my publications on the
subject here of my colleague Conor Kennedy, at the Naval War
College. So much is sayable if only U.S. Government officials
would do so. And so much is preventable, but only if U.S.
officials act soon.
These forces operate together, with blue hulls forward and
white and gray hulls backstopping them. These are gray-zone
operations conducted to alter the status quo in China's favor
regarding disputed claims, employing coercion as necessary, but
ideally without escalating to war.
Nevertheless, leading elements of China's third sea force
have already played frontline roles in manifold Chinese
incidents and skirmishes with foreign maritime forces
throughout the South China Sea. These include China's 1974
seizure of the Western Paracels from Vietnam; its 2009
harassment of U.S. Navy surveillance ship USNS Impeccable; its
2011 sabotage of two Vietnamese hydrographic vessels; its 2012
seizure of Scarborough Shoal from the Philippines; and its 2014
repulsion of Vietnamese vessels from disputed waters
surrounding its oil rig, including by ramming and sinking them.
In recent years, China has used its maritime militia
against military and civilian ships and crews of its immediate
neighbors, as well as the U.S., with no direct public response
from any of them. So there is an important reason for their
current lack of light and attention on China's third sea force.
Despite a deluge of Chinese language evidence of its
development and activities, no U.S. Government report, to my
knowledge, or Washington-based executive branch official, has
publicly mentioned China's maritime militia at all. As a
result, I would submit to you, U.S. policy is underinformed.
U.S. regional allies and partners are confused, and Beijing is
emboldened. But make no mistake. These are state-organized, -
developed, and -controlled forces operating under a direct
military chain of command.
Now, China is generating a worrying new wave of the future
in leading-edge maritime militia development. Headquartered on
Woody Island in the Paracels, the Sansha militia was
established to be a professional paramilitary force, first and
foremost, with fishing a secondary mission at best. Several
dozen large new Sansha maritime militia vessels boast
reinforced hulls, external rails to mitigate collision damage
to the ships themselves, and water cannons, features not common
to normal fishing trawlers, but highly useful for ramming and
for spraying.
Now, as Beijing seeks to punish the Philippines for
petitioning the arbitral tribunal that Professor Kraska has
mentioned, dissuade Vietnam and others from following suit, and
demonstrating its longstanding opposition to U.S. freedom of
navigation efforts, China's third sea force likely appears a
tempting tool.
The next President, or even the current President, but
especially the next President, given past patterns, may well
face a fast-breaking maritime militia-related challenge, just
as he or she is getting started in office. This is because, as
Bonnie Glaser pointed out, Chinese leaders have a history of
testing their American counterparts shortly after they assume
office. And we see some worrying signs here. On 27 October of
last year, when USS Lassen sailed near artificially augmented
Subi Reef, small commercial craft with the hallmarks of
maritime militia vessels approached it provocatively, having
apparently anticipated its presence. Who knows what
contingencies they might have been practicing for or what
footage they might have been capturing for later misuse.
So before China is able to put the United States or one of
our regional allies or partners in a misleading but precarious
position of appearing to confront innocent civilian fishermen,
American officials must finally publicly reveal the third sea
force's true nature and deeds. China's maritime militia can
only be as deceptive and plausibly deniable as we allow it to
be through our own silence and our own inaction.
So here is what I think American policy makers need to do
now. First of all, emphasize three principles. One, China's
maritime militia is a military force, often in disguise. Number
two, China's maritime militia forces don't deserve civilian
protections in the unfortunate event of conflict. And number
three, uncovering the truth about China's maritime militia is
the best way to deter it and to deter its use in the first
place.
I also think we need to engage in three actions. One, call
out China's maritime militia officially in public. Failure of
the Pentagon's 2016 report to mention China's maritime militia
at all was a major missed opportunity. Congress should mandate
detailed coverage in next year's report. And meanwhile,
Congress should publicly address this critical subject and ask
senior administration officials to do so as well. Two, share
information with countries at risk. Provide American leadership
and strategic reassurance. And as part of this, to bring all
this action together, I believe that the next U.S. President
needs to issue a public, whole-of-government Asia-Pacific
strategy to coordinate policy, reassure allies and friends, and
deter destabilizing behavior. Three, communicate clearly with
Chinese interlocutors. Make it plain that any elements that
ignore repeated warnings by U.S. vessels to desist from
disruptive activities will be treated as military controlled,
and dealt with accordingly. To ensure self-defense and
unobstructed mission accomplishment, we need to impose clear
consequences for any use of maritime militia against U.S.
vessels.
In sum, the U.S. faces growing challenges in the South
China Sea. In many ways, China's maritime militia is one of the
simplest to begin to address. Its plausible deniability is one
of its greatest strengths, and yet it has many vulnerabilities.
We can quickly unmask it by putting a clear U.S. Government
stamp of authority on already available information. It is high
time that we did so before things take a turn for the worse in
a time and a way that is not of our choosing.
Thank you very much, and I am happy to address any
questions that you might have.
[The prepared statement of Dr. Erickson can be found in the
Appendix on page 74.]
Mr. Forbes. Thank you, Dr. Erickson. The Chair now
recognizes the ranking member, Mr. Courtney, for any opening
remarks he may have.
STATEMENT OF HON. JOE COURTNEY, A REPRESENTATIVE FROM
CONNECTICUT, RANKING MEMBER, SUBCOMMITTEE ON SEAPOWER AND
PROJECTION FORCES
Mr. Courtney. Thank you, Mr. Chairman, and I apologize for
not being here at the outset. Actually, I have written remarks
which to keep the hearing moving along, I am just going to ask
that they be admitted to the record.
Mr. Forbes. Without objection, all the written remarks for
all of the members will be made a part of the record.
[The prepared statement of Mr. Courtney can be found in the
Appendix on page 33.]
Mr. Courtney. And, again, also to supplement those, some of
us may recall--probably most of us don't--but when we did the
markup last May, or at the end of April, one of the report
requests that HASC [House Armed Services Committee] included in
the markup was, in fact, a report from the Department of
Defense regarding U.S. accession to the Law of the Sea
Convention. And the request had a deadline of September 15, and
believe it or not, they actually submitted the report on time.
And so Navy Commander Jason Levy, of the Oceans Policy Adviser,
Office of the Secretary of Defense, submitted his report. It is
a 6-page report. Very powerful argument. Again, totally in sync
with the three witnesses that the advantages far outweigh the
status quo in terms of the U.S., again, becoming a full
signatory. And, again, I would ask that it be made part of the
record.
Mr. Forbes. Without objection, it will be made part of the
records.
[The information referred to was not available at the time
of printing.]
Mr. Courtney. I would yield back to questions.
Mr. Forbes. Well, once again, thank you all for your
comments and your thoughts. Dr. Kraska, I would like to ask
you, U.S. naval policy to date has been the infrequent
application of innocent passage to seek and challenge unlawful
maritime claims in the South China Sea. In the South China
Seas, have any of the claimants formally established a
territorial sea that would provide a 12-nautical mile baseline?
Dr. Kraska. Thank you very much for the question. Sir, in
answer to the question, my view is that in Article 3 of the
U.N. Convention on the Law of the Sea, it says that states may
establish baselines from which a territorial sea is measured,
and, therefore, there are no territorial seas unless those
baselines are established. They have not been established in
the Spratly Islands. There are illegal straight baselines that
China has purported to establish around the Paracel Islands.
So, my view would be that there are no lawful territorial seas
around any of those islands.
Furthermore, I would say that there is no resolution on
title to those features. And that is the features may be
entitled to a territorial sea and baselines assuming that they
are under the sovereignty of a state, but if they are not under
the sovereignty of the state, then it is impossible for there
to be any sort of baseline or territorial sea. For example, if
a country claims to have a territorial sea around Antarctica,
the United States would not recognize a putative or theoretical
territorial sea there, so why would we then recognize a
putative territorial sea around a rock just because some other
country claims that they happen to own it?
Mr. Forbes. Do you have any opinion as to why the U.S.
policy has been to apply our military forces in the pursuit of
innocent passage and not a more rigorous military application
that would serve to rebuke any unlawful claimant's claims?
Dr. Kraska. I am not--I don't have a view on what the
considerations were within the U.S. Government. I just think
that it is the wrong decision, that is, that I would not have
selected innocent passage, which is the most restrictive
navigational regime in the Law of the Sea in order to challenge
unlawful claims. In particular, we have done so around some
features which are, even if they are, they are not subject to
appropriation by any state, for example, submerged features or
low-tide elevations, which can never, even if they were claimed
by a state, they could never generate a territorial sea, so it
would not make any sense to observe a territorial sea around a
feature such as that.
And the arbitration tribunal brought some clarity to the
Spratly Islands by identifying a number of features, including
several features that China has turned into artificial islands
that could never be considered to have a territorial sea, in
particular, Mischief Reef, for example. So I would recommend
that Mischief Reef be overflown by aircraft. There is no
national airspace above it, no matter which country tries to
claim it, and there is no territorial sea around it. High seas
freedoms and full overflight rights apply on those features.
Mr. Forbes. Ms. Glaser, the Center for Strategic and
International Studies has found that Chinese maritime law
enforcement ships were involved in over 70 percent of the major
incidents in the South China Sea since 2010, including
aggressive harassment, ramming of foreign coast guard ships and
fishing boats. What steps do you believe the U.S., our partners
and allies, should take to dissuade China's use of maritime law
enforcement ships in an aggressive manner contrary to
international norms that further China's unlawful claims?
Ms. Glaser. Congressman, this issue that you raise is
really quite worrisome. I think it doesn't get enough
attention. China is now building exceedingly large white-hulled
ships. Some of them used to be navy ships. They are painted
white. They have larger numbers than others. They use these
ships, vessels, to harass neighbors, whether it is through
water cannons or rammings. When the Chinese had positioned a
large oil rig off of Vietnam's coast in 2014, the activity
between both sides' coast guards was really quite worrisome. I
believe, although our data is from public sources, and, yes, we
have found that in 70 percent of the instances, China is
involved.
Nevertheless, if you were to talk to fishermen in the
region, particularly those Filipinos who make their living from
fishing around Scarborough Shoal and have been unable to fish
there since 2012, those who have tried to go back have been
harassed and have put their own lives at risk, and many of them
are waiting for the implementation of the ruling which has
found that the Philippines has traditional historic fishing
rights in those waters.
So I think that the United States needs to--first, we are
already negotiating in our Coast Guard with the Chinese some
procedures that really draw from the COLREGS as to what is
legal and illegal in terms of interactions when coast guard
ships, white-hulled ships, encounter each other at sea, but
this is less important between the United States and China than
it is between China and the coast guards that are immediately,
of course, in the South China Sea, as the U.S., of course,
operates many Navy ships, but our Coast Guard is really not
very active and present in the South China Sea.
So I believe it is imperative that we strongly encourage
this kind of agreement between ASEAN [Association of Southeast
Asian Nations] and China that is ultimately drawing from what
is already existing in the COLREGS, because China is violating
these laws on a daily basis. Thank you.
Mr. Forbes. And, Dr. Erickson, in addition to the use of
their navy and maritime law enforcement vessels, the Chinese
appear to increasingly rely on their robust fishing fleet as a
third sea force, and you mentioned that in your comments. It
appears that the United States has limited recourse when these
vessels are employed. Do we have a strategy for countering this
kind of gray-zone aggression, and do we need one, and what
steps should the U.S. be taking to deter or defeat this kind of
activity?
Dr. Erickson. Well, Congressman Forbes, I applaud your
attention to this important but under-considered issue. Clearly
how to address American interests and regional stability in the
South China Sea is a challenging problem, but as a start, we
have to understand it fully in order to formulate the right
policy. And heretofore, not publicly focusing on one of the
three major sea forces is an issue. As you correctly point out,
China has the world's largest fishing fleet, and a small elite
within that fishing fleet is brought into the maritime militia.
A small elite within that maritime militia is charged and
entrusted with participation in international sea incidents,
including harassment of our vessels.
So I think we need to start by calling them out on this,
make it clear that we are wise to Beijing's game. I think we
need to find some way to communicate to China that we will not
be stymied by harassment from these vessels. I am not a
maritime lawyer, and I am not going to play one in a hearing or
on TV, but for me, the bottom line is clear: We need to be in
the solutions business regarding U.S. policy, and there is no
way we should allow even the possibility in a future U.S.
freedom of navigation operation, one of our mighty destroyers
to become a Gulliver surrounded by Lilliputs by comparison of
Chinese maritime militia forces. There has to be some way that
we can avoid being Gulliverized in this fashion, and I think we
need to find it soon and communicate that clearly.
Mr. Forbes. My last question, and this isn't a surprise to
you. Mr. Courtney and I talked to you about this. But we have
members from all across the country in here. Some from Indiana,
Missouri, Texas, not exactly surrounded by oceans in their
districts.
Why is the South China Sea important to any of those
individuals? When we hear of middle America and we go talk, you
know, to those individuals, why do they care about this and why
should they care about this whole issue?
Ms. Glaser, we can start with you, but each of you, give me
your best 60-second shot to explain that to them.
Ms. Glaser. Well, Congressman, I have already addressed
this to some extent in my remarks. But I do think that the
issue is really about having a rules-based order; that if there
are no international rules that everybody agrees to and abides
by, then you have chaos and anarchy in a region where we have
enormous interest. So this is a major strategic waterway.
Everybody quotes the figure of $5.3 trillion in trade that
passes through those waters. I am actually trying to update
that figure. It is from 2011, so I am gathering data.
There is the issue of a potential internal sea that the
Chinese could declare there that ultimately would oust
countries that occupy those features, so that countries in the
region that feel United States is an unreliable partner, and
they then have to accommodate to China, and they lose their
autonomy. I think that that is a world in which the United
States would suffer, because this would have implications for
other interests, economic realm, in the trade area. For
example, the Chinese would be greatly emboldened if they
achieve the goal of gaining effective control over the waters
and the airspace of the South China Sea.
Mr. Forbes. Dr. Kraska.
Dr. Kraska. Thank you, Mr. Chairman. The oceans and the
airspace above them provide the connection between the United
States and our friends and allies throughout the world, and so
the ability to operate freely in this global domain is the
cornerstone of American power and American position in the
world. It has been so for at least 100 years, and our
connection with other countries is important to inoculate those
countries from would-be hegemonic powers, such as China in East
Asia or Russia in Europe, that might come to dominate those
areas. And the only way that those countries can stand is with
a connection--stand independently, is with a connection to the
United States.
The United States has gone to war numerous times to
vindicate its right of freedom of navigation because we
understand that we are essentially a hemispheric island nation,
and we care very much about whether Europe or Asia is dominated
by an emerging challenger.
I would end with saying that the Vietnam war, for example,
one of the major instigations was the Gulf of Tonkin incident,
and a challenge to U.S. ability and rights and freedoms to
operate in the global oceans. So the South China Sea is a
dangerous flashpoint, one of the most dangerous in the world,
and the United States has to be steadfast in order to maintain
its rights and freedoms in this area because there is one rule
set that applies throughout 70 percent of the planet. And if
there is a different set of rules that are going on in the
Persian Gulf or in South China Sea, then it puts at risk
freedom of navigation anywhere else in the world.
Mr. Forbes. Dr. Erickson.
Dr. Erickson. You have all called us here today because you
have been entrusted with representing the jobs and the values
of the people in your district. And where that all comes
together is in an open and rules-based international system
underwritten, in part, by American seapower. It doesn't just
sustain itself. Now a critical part of that international
system, a critical part of the global commons is being
challenged in a new way because China is trying to carve out
the South China Sea as a zone of exceptionalism where those
open and free and productive and prosperous rules and norms
don't fully apply, where they are subordinated to Beijing's
political priorities.
If we allow that to happen, it is not just going to have an
impact on our friends and allies in the immediate region. It is
going to reverberate across the world in terms of economic
growth and trade and factors that will ultimately make it back
to everybody's district. So I think we have a strong shared
interest in upholding that freedom and that openness in the
South China Sea.
Mr. Forbes. Thank you. Mr. Courtney is recognized for any
questions he may have.
Mr. Courtney. Thank you, Mr. Chairman. And thank the
witnesses for your testimony and all your hard work over the
years on this issue which, obviously, with recent events, is
something that really more Members need to listen to and focus
on. I just want to, again, follow up on some of the testimony
regarding the whole process that the tribunal just went through
in terms of reaching its decision.
And Ms. Glaser, again, just can I ask a couple quick
questions. Because of the fact that we never became a full
signatory, the U.S. actually was shut out in terms of being a
party or any kind of participant in that process. Is that
correct?
Ms. Glaser. Yes, it is. The United States, I believe, was
barred from sending an observer to the proceedings because it
is not a signatory to UNCLOS.
Mr. Courtney. So even though we obviously have a national
interest, which all of the witnesses have talked about in that
part of the world--we are a Pacific nation--the fact of the
matter is is that we, again, couldn't file a complaint. We
could not appear even as an observer and, really, we just had
to kind of rely on the kindness of strangers in terms of
advancing our interests. Is that correct?
Ms. Glaser. Yes. My understanding is that we did get back
briefs from our allies. I think the Australians did send an
observer, of course, several other nations, but there is no
substitute for having the United States and its own person
having somebody present in the room. So we do not--we are
unable to avail ourselves of really all of the benefits of
UNCLOS, but we do really have to share the burden of
undertaking the obligations.
Mr. Courtney. Correct. So, again, in your testimony and the
other witnesses' testimony in terms of the follow-on to the
tribunal's decision, I mean, inevitably, the question of a
remedy or enforcement in terms of, again, protecting the
tribunal's decision, which the U.S. agrees with, is going to
inevitably require U.S. Navy assets, you know, interaction with
our allies in that region. I mean, it has an impact in terms
of, you know, the work of this committee, in terms of, you
know, the Navy's resources and policies.
Ms. Glaser. Yes. I agree. I think there has long been
concerns and some of them, perhaps, very legitimate about the
price or costs that the U.S. would have to bear if we ratify
UNCLOS. But as time has gone on, as I have observed, the
maritime issues and challenges that we face around the world in
the areas that I focus on really are East China Sea and South
China Sea. We are just paying an enormous price in terms of
American credibility, moral authority, and our ability to act
in the region effectively. So we are constantly criticized not
only by China, but by our friends in the region for not taking
that step when, in fact, we were deeply involved, of course, in
the negotiations which produced the treaty.
Mr. Courtney. And so looking at your suggestions about what
should the U.S. do going forward, I mean, persist in calling
for compliance with the ruling, warn China against taking
actions contrary to the ruling. I mean, the fact is is that we
are in a somewhat conflicted position about pointing to a
ruling that, again, we are not a full-bodied participant in
terms of that process. And as you say, it just sort of
undercuts, certainly, the moral standing of defending the rule
of law, and kind of demoralizes our friends in that part of the
world in terms of our ability to assert it.
Ms. Glaser. I hear this from our allies, our friends in the
region quite frequently when I travel to the region, when
diplomats from those countries visit Washington, DC, they do
not understand why the United States has left itself open to
such criticism, particularly by the Chinese who say, Well, the
United States hasn't ratified and become a signatory, so why
should we even listen to U.S. objections about Chinese behavior
and so-called, what they would say so-called lack of compliance
with the arbitral tribunal.
So this is a huge challenge for the United States to deal
with going forward. I think that it is long overdue for the
United States to become a signatory to the Convention.
Mr. Courtney. Thank you. And Mr. Kraska, you mentioned
President Reagan's statement of principles back in 1983. Again,
included in that whole sort of series of decisions or
announcements was also sort of the problems that existed at
that time in terms of objections to the language of the treaty
as it was crafted at that point. Can you just kind of fast
forward us a little bit in terms of whether or not President
Reagan's concerns still stand unchanged, or whether or not
there actually has been some intervening events?
Dr. Kraska. Thank you, Congressman, for the question. So
the ocean policy statement did object to one provision, one
part, actually, to be more accurate, of the U.N. Convention on
the Law of the Sea which was part 11 on seabed mining. And the
Reagan statement says that the other portions of the Convention
reflect customary international law and the norms in the United
States would comply and expected, actually, other countries to
comply as well.
Part 11 underwent a transformation between 1982 when the
Convention was adopted by the U.N. Third Conference and 1994,
mostly through the efforts of the United States, as well as
some other countries, because the United States was not the
only industrialized country that declined to sign the
Convention. And the major intervening event was, of course, the
fall of the Berlin Wall and the, sort of, lack of respect for
socialist models.
And part 11, the original part 11 was based on a socialist
sort of redistribution of wealth type of model, and after the
Berlin Wall came down and it became apparent that no
industrialized countries were going to sign the treaty, it was
revised through an amendment, an implementing agreement for
part 11. The implementing agreement has a number of--it
reflects a number of positive developments. The first is that
the United States is guaranteed a position on the Council for
the International Seabed Authority. And the Seabed Authority is
the authority that grants seabed licenses for areas beyond
national jurisdiction. The United States has a guaranteed seat
on that Council, and that Council is run through consensus,
which means the United States has an effective veto over the
decisions of the Council as well the distribution of funds.
One of the Reagan objections was that the International
Seabed Authority could take the royalties from seabed mining
and transfer those to countries for development as well as
national liberation movements. And the national liberation
movements was taken out and the United States, again, placed
with a permanent seat on the Council. Those were the major
features. There are some other tertiary benefits, such as
marine technology, in the first or original version, was going
to be transferred through mandatory means. In the revised
version, marine technology is to be transferred on a market
basis. And so part 11 underwent an entire transformation to
sort of update and modernize it from a 1970s socialist
construct to a 1990s capitalist economic and more liberal
construct.
Mr. Courtney. Great. Thank you. And I think that is really
important to flesh out that record because, again, we still
sort of hear the same objections that really, I think, have
become outdated because of the modifications that took place,
and, obviously, the events of the last year or so show that
this is no longer an academic debate over UNCLOS. I mean, we
really need to get off the bench and get into the arena in
terms of having an impact on critical decisions.
Again, House Resolution 631 is out there for Members if
they wanted to sign on calling on the Senate to move forward.
And with that, I yield back.
Mr. Forbes. Chairman Wittman is recognized for 5 minutes.
Mr. Wittman. Thank you, Mr. Chairman. I would like to thank
our witnesses for joining us today. I wanted to get each one of
your perspectives on where we are now in the Chinese effort of
using essentially incrementalism to move the international
norm. They continue to profess that things aren't happening.
They don't intend to militarize the area. We saw in September
2015, President Xi Jinping stated that they had no intention to
militarize the Spratlys, yet, having visited there, and seen a
hardening of those islands, airstrips being built, antiaircraft
batteries being put in, clearly an effort to militarize those
areas.
It is concerning to me that we see this effort to delay
negotiations. You know, don't negotiate, don't negotiate. Talk
about, let's continue to push things down the road, while at
the same time, moving the norm. And then the United States is
put in the position to either have to take aggressive action to
try and stop that, or we find ourselves in a new, less
acceptable international norm. And let's face it, we get to a
certain point and then that is going to become the reality.
The question I have is, are the current U.S. freedom of
navigation operations [FONOPs] and the effort to enforce the
U.N. Convention of Law of the Seas ruling, is that enough by
itself to reassure our allies? And should we be doing more to
pull our allies in to be part of this freedom of navigation
operation so that there is more than just a U.S.-China scenario
here, where other nations or folks in the region say, listen,
this is Japan that is part of this, this is Australia that is
part of this, pursuing these FONOPs in the area. Because short
of that, if this continues, it will get to a point where China
says, listen, we know the United States is not going to take
action to try to reverse any of this. And we even hear that
from our naval leaders in the area. So I would love to get your
perspective about China pushing this effort of incrementalism,
creating, essentially, these unilateral actions that create a
new norm and really kind of daring us to do anything other than
the current freedom of navigation operations and try to change
the status quo.
Ms. Glaser. Thank you very much, Congressman. You refer to
Chinese President Xi Jinping's statement, which he made in the
Rose Garden, that China doesn't have the intention to
militarize the Spratlys. I believe that Xi Jinping probably had
a very different definition in mind of militarization. I think
the Obama administration tried to hold his feet to the fire,
but, clearly, militarization continues. And we have seen recent
satellite imagery made public by our Asia Maritime Transparency
Initiative at CSIS which has shown that there are hardened
shelters on at least three of these islands capable of
accommodating about 24 fighters; what looks like that they are
building is emplacements for surface-to-air missiles. They
could be putting in cruise missiles in the future. So, it is
hard to state any more clearly that militarization is underway.
The United States, I think, must stop any further land
reclamation. This is essential.
There were some signs that the Chinese may have been moving
earlier this year to start dredging at Scarborough Shoal. If
they were, perhaps the United States did deter them. It is
critically important that our President has told Xi Jinping
personally, ``Do not go forward and do that, or there is going
to be a U.S. response.''
We have to be able to be willing, not just able but
willing, to put the United States on the line here and incur
some risk. And if we are willing to incur some risk, then I
think the Chinese will take us more seriously.
One of the problems in this regard is that, because the
United States has prioritized cooperation with China on a vast
number of issues, some of which are very important--climate
change, the agreement with Iran to prevent Iran from going
nuclear--there has been, I think, a belief in the
administration that we can't have those and at the same time
put pressure on China to stop taking destabilizing actions in
the South China Sea. But I think we can do both. And we have to
be willing to very clearly tell the Chinese that their behavior
is unacceptable.
I would agree with you, I guess with a bit of a caveat, on
the question of whether we should be conducting FONOPs with
allies, because I would distinguish between Japan and
Australia. And, ultimately, this is a sovereign decision for
our allies to make.
I think that Australia is very like-minded with the United
States on this issue. If they were to conduct their own
patrols, I would be quite supportive of that. Maybe they would
be willing to do that jointly with us; I personally don't think
it is necessary.
Japan is a bit of a different case. As I am sure you know,
the Chinese are putting a great deal of pressure on Japan in
the East China Sea. And the day that they sail a navy ship
inside 12 nautical miles of a Chinese-occupied territory in the
Spratly, I worry that the Chinese are going to sail a navy ship
inside the 12 nautical miles around the Senkaku [Islands]. And
that would be a very big price, I think, for Japan to pay.
Having said that, there is a lot that the Japanese can and
are doing in the South China Sea.
Mr. Wittman. Thank you, Mr. Chairman. I yield back.
Mr. Forbes. Mr. Larsen is recognized for 5 minutes.
Mr. Larsen. Thank you, Mr. Chairman.
Dr. Erickson, good to see you again.
For those who have not traveled to China with Andrew, where
he speaks fluent Chinese, and you are hanging around talking to
officers in the PLA, it is very valuable to have Dr. Erickson
in the room with you. So I will note that.
And my first question is for you, Dr. Erickson. I think you
are the one who mentioned whole of government. I am sure all of
you have some concept of what that might mean. But how would
you define or redefine a whole-of-government approach on this,
with regards to this particular issue?
Dr. Erickson. Well, Congressman, it is great to see you
again. And it was a great pleasure to be with you in China. And
I knew we could always find Starbucks coffee in the morning
with you there. That was part of your trademark. And I think it
is well-recognized in your home district.
Mr. Larsen. For a while, it used to be part of Starbucks'
trademark until it went to China.
Dr. Erickson. Excellent.
So I think there is a lot that needs to be done in
implementation. This is an evolving effort, but the starting
point is very simple. The next U.S. administration needs to
issue a comprehensive strategy. It is extremely viable; it is
extremely doable.
I think it could be drafted in a fairly short period of
time. There are numerous documents to draw on. The last two
U.S. maritime strategies have had a lot of positive and robust
language about the importance to the U.S. of maintaining the
global system. We do not seek enemies and monsters to destroy,
but, nevertheless, we are committed to the support and
maintenance of that system. If another state decides to try to
disrupt that, let's say in the South China Sea, in our effort
to secure that system, we would then need to push back and
handle that issue as necessary. Lots of great language right
there.
In the Clinton administration in the 1990s, the Pentagon
issued a series of regional policy statements. That offered a
good series of examples. And during this current
administration, there have been a smattering of documents, from
a White House statement regarding the rebalance--which I agree
with everything that has been said; that is a good overall
initiative--to a brief State Department glossy.
The point is this needs to be taken all together, under the
stamp of a President, the next President, and this will lay a
powerful basis for further action.
In the absence of that, I have heard from many
interlocutors in allied countries. There is confusion as to
what the real policy is. There is uncertainty as to what the
rebalance means in practice. And there has been frustration
when people have been directed to read a bunch of different
documents and various media statements by different
spokespeople that we all know, in this busy town, no one who is
doing an active leadership job has the time to sit down and put
all together.
So there is a lot that needs to be done, but I think there
is a very good and positive place to start. And I am optimistic
that the next President will see move to do just that.
Mr. Larsen. Thanks.
And I think it does--this is not a question, but it does
beg the question of, with all these statements, with all these
policy statements already made and these other actions being
taken, why hasn't there been the momentum to keep a consistent
or a comprehensive strategy going? And that is, I think, a
legitimate question. I am not asking folks to answer that right
now.
Dr. Kraska, can you expand a little bit on the point about
a comprehensive strategy, but specifically with regards to use
of multilateral venues to essentially enforce UNCLOS even
though we are not signatory--or we have not enforced it, we are
not enforced to it. I think it is an interesting idea you
mentioned in your testimony. I would like to hear a little more
about it.
Dr. Kraska. Thank you very much for the question.
I would suggest it wouldn't be an enforcement mechanism,
but, rather, there are multilateral institutions that are
stakeholders in the Law of the Sea as well as other
international instruments or conventions, such as the Collision
Regulations or the Chicago Convention on Civil Aviation, and
these institutions have not been utilized by the United States
or adequately by other countries.
The United States, for example, to my knowledge, has not
partnered with Vietnam when Vietnam complained that Chinese
aircraft are not complying with ICAO air traffic control
regulations over the South China Sea. The United States should
use the venue of the International Civil Aviation Organization
and join Vietnam in the effort to do that.
The same with the International Maritime Organization. The
United States is a member. It doesn't actually require us to be
a member of the U.N. Convention on the Law of the Sea, but both
the United States and China and numerous other countries are
members of the international convention on the Collision
Regulations. And so that is a binding treaty commitment that
has been violated, that the arbitration found was violated by
Chinese vessels.
China also has flag state responsibilities, not just for
its government ships such as coast guard vessels but to
maintain certain standards for its fishing vessels, including
the vast maritime militia that Professor Erickson described.
So I think that there are a number of venues that we
haven't fully utilized that could be brought to bear,
including, ultimately, the U.N. Security Council. Sure, China
has a veto in the Security Council, but, nonetheless, the
Security Council is the primary organ for international peace
and security. And I think we are all here deeply concerned
about the threats to international peace and security in the
South China Sea, and so there ought to be some way to use that
institution as well, if nothing else, just to make a statement.
It will project to other countries, as well as to China, the
seriousness with which we take what is going on in the area.
Mr. Forbes. Mr. Russell is recognized for 5 minutes.
Mr. Russell. Thank you, Mr. Chairman.
There is no doubt that, with a third of the world's
commerce flowing through this body of water, it has everybody's
interest. You know, I have even proposed, if China's statements
are truly about rescue operations, aid and navigation, aid and
communication, then let's take them at their word and assist,
like Antarctica. I mean, we have international use there,
right? For studies, for scientists, everything else. And if it
is truly a third of the world's commerce that is flowing
through the South China Sea, then, well, why don't we all roll
up our sleeves and go out there and we will put our Coast Guard
helicopters and our everything else? I mean, we are all in it
together.
I think there is a diplomatic path for that, by the way.
But that ought to be our first and chief aim, rather than
putting ourselves on a bumper car--you know, rather than lanes
of competition, economically, we are putting ourselves on the
smash-up derby over pieces of coral. Imagine what would happen
in the world if the world's two largest economies went at war.
It would be devastating.
And I don't see a lot of diplomatic effort in that way. But
no one loves peace more than those that have helped preserve
it. I guess there has to be a comprehensive solution rather
than just militarily or economically. It has to be all of the
instruments of national power and international power.
You know, will China be unforgiving? Well, you know, I
don't know. Since the Treaty of Wangxia, we have been friends,
since 1744. Our entire World War II policy has been about--we
entered the war largely over Chinese interests and sovereignty
interests for China. With the exception of the 3 years we
fought each other in the Korean war, you know, we have managed
to somehow make it work. I have faith enough in the two great
nations that maybe there is still some opportunity to do that.
And I know you feel those same convictions.
With that said, I am a little concerned about the Treaty of
the Sea because some things haven't changed. Great, we are
making progress on the deep, you know, mining on the
continental shelf. And those are--especially the continental
shelf is extraordinarily important to the resources of the
United States. With $18 trillion in debt, we could use some
good news on mineral development.
Would any of you care to address--there are provisions that
are against intelligence and submarine maneuvers in the Treaty
of the Sea. That would have a material impact on the one nation
that possesses a great capacity in that area.
Submitting to international sovereignty jurisdictions also
could weaken our argument on the International Criminal Court
arguments, where we don't want to submit to International
Criminal Court positions because of our U.S. sovereignty.
Signing up for Treaty of the Sea sovereignty disputes could
also spill over into that.
And, again, this is open discussion. If there are some
brilliant minds sitting at the table, I would really like your
thoughts on some of those issues.
Dr. Kraska. I am not a brilliant mind, but I am a lawyer.
Mr. Russell. Well, you had me until you said that, you
know.
Dr. Kraska. And, in fact, I wrote an article just on this
topic, on submarine operations.
So it has been discussed by administration officials, both
in the former as well as the present, that the Law of the Sea
Convention affords the privilege or the right of innocent
passage in the territorial sea that is within 12 miles. In
order to invoke that right, a ship must be on the surface--a
submarine must be on the surface and show its flag.
That doesn't, however, say that the submarine must do so.
In other words, the submarine, if it wants to have the right of
innocent passage, would be on the surface and show its flag
and, therefore, would be cloaked in the color of law with that.
If the submarine is not on the surface and within an area that
is the territorial sea, there is nothing in international law
that says it can't be there. It just says it doesn't have a
privileged status or a right to be there.
So, in general, espionage goes on all the time among
states, and it is not contrary to international law. There are
rules, for example, of collecting intelligence within certain
countries, but there is no international law that forbids the
collection of intelligence. And so a submarine within 12
nautical miles of a shoreline is presumably not in innocent
passage, but it is not patently unlawful per se.
With regard to intelligence operations and military
activities generally, of course, the United States has already
indicated that it would invoke the declaration under article
298 of the Convention and exercise an optional exception, which
then forecloses any sort of arbitration or International
Tribunal for the Law of the Sea from second-guessing U.S.
military operations.
The United States is not alone in doing so. Numerous other
countries have done so--France, the United Kingdom. And China
has done so. In fact, China probably would have been better
served and maybe would have suffered, I still think, a big loss
with the arbitration, but probably a narrower award if it had
invoked article 298, as was its right to do so. And I would
expect the United States would do so.
And once a country invokes article 298, then it is not
reviewable by any sort of arbitration or any tribunal. The
country invoking article 298 also specifies the scope of what
the content of that is. So, assuming that we have faith in U.S.
leaders to exercise the optional exception, then there would
not be any sort of ability of a tribunal to second-guess U.S.
military or intelligence collection.
Mr. Russell. Well, thank you.
And thank you, Mr. Chairman.
Mr. Forbes. The gentlelady from Hawaii, Ms. Gabbard, is
recognized for 5 minutes.
Ms. Gabbard. Thank you. Thank you, Mr. Chairman.
Ms. Glaser, I wanted to follow up on your response to Mr.
Larsen about the scenario of a Chinese naval ship entering
within the 12 nautical miles of the Senkakus. And it was the
last thing that you said. You spoke about this being a very big
price to pay, but that Japan is already kind of taking
proactive actions in preparation should that scenario play out.
Can you expand on that, both the price--you know, what the
most likely versus most dangerous courses of action would be if
that scenario played out?
Ms. Glaser. Well, thank you for the question.
First of all, I think my last point was that Japan is doing
a great deal in the South China Sea even though it is not
conducting, as far as I know, patrols itself or jointly with
the United States inside the 12 nautical miles around
particular features.
So it is providing coast guards, aircraft to individual
countries like the Philippines, Vietnam, Malaysia to enhance
maritime domain awareness and coordinating with the United
States in that regard, as well as with Australia--South Korea
is also taking some very important measures--so that countries
can actually know when there are actions being taken by other
nations inside their exclusive economic zone.
So this is, I think, a very important program and enables
those countries, or will over time, to contribute more to their
regional security. So Japan is very actively involved in this.
But, of course, their main concern, their priority security
concern is the East China Sea. And we see, of course, Chinese
operations continuing on a daily and weekly basis, where there
are mostly white-hulled ships, maritime militia probably as
well, that are operating inside 12 nautical miles. It is
approximately three times a month. Recently, they have been
using more ships each time they send ships. It used to be two
or three; now it is three or four. And, recently, we saw a very
large number of these government-owned ships that were inside
the 12 nautical miles around the Senkakus.
China's naval ships have been operating closer to the 12
nautical miles and really the contiguous zone outside of that
12 nautical miles, but they have not yet entered into the 12
nautical miles, which I think would be extremely dangerous.
The Japanese are taking measures to deter China from
continuing to put pressure on the Senkakus, which, of course,
they administer. I think that the Chinese have been, to some
extent, deterred not only by what the Japanese are doing but by
the fact that President Obama, this administration and also
prior administrations, although not at the Presidential level,
made it quite clear that the Senkakus are covered under article
5 of the U.S.-Japan Mutual Security Treaty.
But, by contrast, of course, in the South China Sea, we
have not made very clear statements, and I think this has
created this gray-zone area where the Chinese have taken
advantage. And it is a difficult challenge for the United
States and other countries to deter Chinese activity in the
South China Sea, whether it is dredging or further
militarization.
Ms. Gabbard. Yeah. Thank you.
Thank you, Mr. Chairman.
Mr. Forbes. And, Dr. Kraska, could I just follow up just a
little bit on perhaps my friend from Oklahoma's questioning
about the U.N. Convention on the Law of the Sea?
Before this convention--and since you wear the taint of
being a lawyer, you are on there to do that--we had customary
international law. And there was a body of international law,
which people studied and nations complied with or didn't comply
with as they saw fit. If there was a dispute, how was that
resolved?
Dr. Kraska. Thank you for the question.
Just as in national law or in every jurisdiction that I am
aware of, the later in time prevails if there is a dispute
between two bodies of law.
Mr. Forbes. No, I meant what body would actually decide
that dispute. So, in other words, two countries differ on--when
ordinary international law, it is floating out there, and China
takes one position, the Philippines take another position.
Before you had the U.N. Convention on the Law of the Sea, who
was the arbiter of what that law was?
Dr. Kraska. States can only be adjudicated under their
consent, so it would have to be the International Court of
Justice [ICJ] or some sort of ad hoc arbitration.
Mr. Forbes. So they would have to agree to who that was.
Dr. Kraska. That is right.
Mr. Forbes. Under the U.N. Convention on the Law of the
Sea, who would that arbiter be?
Dr. Kraska. There are four different mechanisms under the
U.N. Convention on the Law of the Sea. And if the parties can't
agree on which mechanism--it could be the ICJ, it could be the
International Tribunal for the Law of the Sea--and there are
two types of arbitration. It would be an annex 7 arbitration,
just as the China-Philippines--China did not appear, and so
that was the default mechanism, which is an annex 7
arbitration.
Mr. Forbes. And I guess one thing, just to put it out on
the record as a little counter to the push to sign this treaty,
is that it is not like there is no customary international law
out there. That law is out there. It exists. You could look at
a treaty like this, even if you didn't sign it, and incorporate
that as part of that body of international law.
But I think one thing that there are some people concerned
about is the United States has a culture that, when it signs a
treaty, it will comply with that treaty, and, therefore, if it
had a ruling go against it, it would comply with it. But there
is some concern that when you get a China that is a signer to
the treaty but then says it is not going to comply with it,
that maybe there is a question as to why the United States
would want to submit its sovereignty to that type of process.
And, you know, I would just throw that out as another part
of that debate which I think is out there as well.
With that, gentlemen, ladies, we also had told each of you
that we were going to allow you to have any follow-up comments
you had, clarifications, things that we didn't cover that maybe
you would like to.
Dr. Erickson, why don't we start with you this time, and we
will end up where we started, with Ms. Glaser.
Dr. Erickson. Absolutely.
Well, thank you very much, Mr. Chairman, Ranking Member
Courtney, members, for this opportunity to call attention to
China's third sea force in the context of South China Sea
operations.
There are many things we need to do to further U.S.
interests and uphold the international system in the South
China Sea, but I think we need to start with an honest and open
discussion and understanding of what China is actually doing
there. And it has been far too long that we have ignored or not
adequately paid attention to the existence of this other sea
force that is on the front lines.
Just a couple quick additional thoughts on what we can do
about this.
First of all, this is a force that thrives in the shadows
of plausible deniability. And I have tried to make the case
today that it is well within our power to shine enough light to
dispel a lot of those shadows. Thus exposed, this is in many
ways a very limited, weak, and vulnerable force. And I believe
that we can inject enough doubts into the minds of China's
leaders about its use in the scenarios we worry most about that
we can change their decision-making calculus and make it much
less likely that we would have to be confronted by elements of
this force in a difficult, disorienting, or sort of CNN effect
publicly--a public optically bad kind of way.
There is also an additional source of leverage I would like
to suggest. I am proud that I have had a chance to be involved
in naval relations between the U.S. and China, but I think we
need to make it clear in our policies toward China that we look
at their three sea forces comprehensively.
We cannot tolerate a situation in which their navy bear-
hugs our Navy in search of best practices and diplomatic cameo
ops as a kind of a good cop while their other two sea forces,
the coast guard and the maritime militia, play the role of bad
cops doing the dirty work in the South China Sea.
So I think, by looking at this issue comprehensively, by
raising attention to it in Congress and asking the
administration to do the same, by communicating all of this
clearly with resolve to our Chinese interlocutors, I think we
can create a much better baseline and understanding in the
South China Sea. It won't solve all the problems, but it will
reduce risks, put us in a much better position.
Thank you.
Mr. Forbes. Thank you.
Dr. Kraska.
Dr. Kraska. Thank you, Congressman.
I would close by underscoring the importance of force
structure and forward presence in the South China Sea and in
East Asia generally. International law and particularly
customary law is built upon state practice, and a virtually
present force that is tethered in San Diego or somewhere else,
a notional force that can arrive in a crisis, frankly, does not
build the state practice. And so a virtual presence is an
actual absence.
And hulls in the water matter. In the warfighting context,
it matters, perhaps, that a modern destroyer has the capability
of 10 warships in the past, but it doesn't matter for
international law. And so I think that, for example, having the
LCS [littoral combat ship] vessels operate from Singapore is a
big step forward and greater presence. I think more hulls are
needed, more hulls in the water.
I also think we should talk plainly about the issues. I
have mentioned some of the multilateral institutions that we
can approach and make it a priority within the U.S. delegation
to bring these issues up.
And it begins even with the nomenclature that we use for
China's claims, which in the U.S. Government we call them
``excessive claims.'' I would suggest that they are not
excessive claims, they are unlawful claims. And we ought to
just speak plainly. There is no legal authority to draw a big
circle in the water a thousand miles long and then claim it as
some sort of special zone or internal waters. And so we should
get rid of these euphemisms, which I think raise doubt and
ambiguity and play into China's hands. These are unlawful
claims.
I also would recommend that we link our policies, global
oceans policies, in particular the South China Sea, to other
issues of bilateral relationships. This is what we did during
the Cold War with the Soviet Union, I think to great effect,
and we should be willing to do it in the South China Sea. The
threats to freedom of navigation that emanate from the South
China Sea and reverberate globally are a great enough threat to
the United States and place enough of our core interests, our
national interests at stake that we ought to be willing and
able to link Chinese conduct to other aspects of the
relationship.
And, finally, in respect of your comment about
noncompliance, this is always something that is faced in
international law, and that is why I mentioned it. I don't
expect that China will suddenly comply with the Law of the Sea
Convention.
I think reasonable people can have different views on it.
My perspective is that the benefits of the Law of the Sea
Convention do outweigh any sort of perceived risks. We
encounter the same sort of thing with the U.N. Charter, for
example, which countries violate sometimes with impunity;
China, in fact, violated it in 1974 when it seized the western
Paracel Islands from Vietnam, violating article 2, paragraph 4.
And yet we are still a member of the United Nations because we
believe that it is better to be within the tent than outside of
the tent. The same with the World Trade Organization; it has a
mandatory dispute resolution process.
So there are risks of noncompliance, and that is why I
would say that joining the Law of the Sea Convention is not the
end of the process. And I think some advocates may view it as
the end of the process. I view it as just one point on the way
station to continue the struggle to shape the law. And so the
problems will not go away when we join the convention; I just
think we will be in a better position.
Mr. Forbes. And Ms. Glaser.
Ms. Glaser. Thank you, Congressman Forbes. It is a
privilege to be here today, and I want to thank you for
especially convening this hearing on a very important set of
issues.
I would like to underscore or pick up on what Andrew
Erickson referred to as influencing China's calculus and
shaping China's choices. I believe that there are ongoing
debates in China about how to best proceed on this issue of the
South China Sea and others. And the Chinese may well conclude
that there is too high a cost to pay if the United States and
other countries take actions to impose greater costs.
And so I think that that is really what is incumbent upon
us, that we create an environment in the South China Sea using
our whole-of-government approach--our military, our diplomacy,
and our economic engagement as well.
And there I would say that I believe, if we are to maintain
our credibility in the region, if we are to sustain confidence
in the rebalance to Asia, that it is extremely important for
the Trans-Pacific Partnership to be ratified. This is seen by
every country in the region as a litmus test of whether or not
the rebalance is going to survive this administration. So I
think that that should be a very high priority.
So I would endorse the recommendation, we need to have a
clear strategy, a report that comes from high levels in the
administration, and then coordination of the various agencies
and elements of the U.S. Government in support of the
implementation of that strategy.
And particularly in the military realm, we have to send
clear signals. And we have to sometimes be willing to incur
risk. I believe that the Chinese respect strength and they will
take advantage of weakness.
So I do not see it as inevitable that we will have a
confrontation with China in the South China Sea if we have the
correct strategy to avoid such confrontation and potential
conflict.
Thank you.
Mr. Forbes. On behalf of all of our members and our
subcommittee, we want to thank all of you for taking your time
to be here.
And, with that, we are adjourned.
[Whereupon, at 4:33 p.m., the subcommittee was adjourned.]
=======================================================================
A P P E N D I X
September 21, 2016
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PREPARED STATEMENTS SUBMITTED FOR THE RECORD
September 21, 2016
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QUESTIONS SUBMITTED BY MEMBERS POST HEARING
September 21, 2016
=======================================================================
QUESTIONS SUBMITTED BY MR. LANGEVIN
Mr. Langevin. Japan has recently committed to increasing its
patrols and its training activities with the United States in the South
China Sea, as well as giving additional military aid to countries such
as Vietnam. The Philippines, conversely, have made little public
mention of the July tribunal ruling. How are our other allies in the
region, specifically Taiwan, reacting to the ruling on the South China
Sea territorial disputes?
Ms. Glaser. A total of 7 countries called on the Philippines and
China to abide by the ruling, which is final and binding on both
parties. Those seven countries are: the United States, the Philippines,
Australia, Canada, Japan, New Zealand and Vietnam. Since then, however,
the Philippines has downplayed the ruling, especially in its
discussions with China.
Taiwan's new government under Tsai Ing-wen found the tribunal award
``completely unacceptable.'' An official statement objected to the
reference to ``Taiwan Authority of China'' in the text of the award; to
the finding that Taiping Island is a rock that isn't entitled to an
exclusive economic zone; and to the fact that the ROC was not invited
to participate in the proceedings. The statement maintained that ``the
award has no legally binding force on the Republic of China.''
It should be noted, however, that Taiwan has only stated that it
claims the South China Sea Islands. Taipei has not claimed sovereignty
or jurisdiction over waters in the South China Sea that are not
associated with land features. Taiwan's official statements do not
reference the 1947 11-dash line. Speaking to a crew aboard an ROC
frigate the day following the ruling, President Tsai Ing-wen said that
Taiwan supports resolving maritime and territorial disputes through
negotiations in a peaceful manner. Despite rejecting the ruling, Tsai
often references the importance of abiding by international law and
UNCLOS in particular in her statements regarding the South China Sea.
Mr. Langevin. Japan has recently committed to increasing its
patrols and its training activities with the United States in the South
China Sea, as well as giving additional military aid to countries such
as Vietnam. The Philippines, conversely, have made little public
mention of the July tribunal ruling. How are our other allies in the
region, specifically Taiwan, reacting to the ruling on the South China
Sea territorial disputes?
Dr. Kraska. This response provides reaction by Taiwan and the
following five U.S. treaty allies to the South China Sea arbitration
award of July 12, 2016. In short, Japan and Australia were very
supportive of the arbitration award, and their statements mirrored the
U.S. position that the award was ``final and binding'' on China and the
Philippines. Korea was somewhat circumspect, and adopted a neutral tone
that ``took note'' of the award, while reiterating support for freedom
of navigation. Thailand was even more ambiguous than Korea, and did not
even mention the award in an official statement released on the day of
the arbitration ruling. Taiwan rejected the award based upon its
finding that Taiwanese-occupied Itu Aba, the largest feature in the
South China Sea, was determined to not be entitled to a 200 nautical
mile exclusive economic zone. Taiwan did not mention the arbitration
award's rejection of the Nine Dash Line, which is the most egregious
and unlawful claims by China.
Taiwan
The Republic of China (Taiwan) rejected the ruling the arbitration
ruling because it held that none of the islands in the South China Sea
are entitled to a 200 nautical mile exclusive economic zone. The
arbitration panel ruled that all features in the Spratly Islands are
either ``rocks'' that cannot sustain human habitation, or low-tide
elevations. Rocks are entitled to only a 12 nautical mile territorial
sea. Taiwan occupies and claims Itu Aba, the largest feature in the
Spratly Islands. Under the ruling, Itu Aba (Taiping) would not be
entitled to a 200 nautical mile exclusive economic zone. The 0.51-
square-kilometer Taiping is the largest land mass in the Spratly
Islands, and it lies about 1,600 kilometers southwest of Kaohsiung,
Taiwan.
Japan
Japan has repeatedly indicated that China should accept the
arbitration ruling as ``final and binding.'' On July 26, 2016, for
example, Japan Foreign Minister Fumio Kishida urged Beijing to comply
with an international tribunal ruling that denied China's sweeping
claims in the South China Sea.
South Korea
The Korean government ``took note'' of the arbitration ruling, and
thus adopted a neutral position that avoided a strong signal of
support. The Korean government reiterated its support for freedom of
navigation and overflight in the South China Sea, and also reiterated
that all conflicts should be resolved through peaceful means and in
accordance with ``relevant agreements, non-militarization commitments,
as well as internationally established norms of conduct.'' The Korean
government also stated that it ``hopes . . . South China Sea disputes
will be resolved through peaceful and creative diplomatic efforts.''
Australia
On July 12, 2016, the Australian Government issued a statement that
``calls on the Philippines and China to abide by the ruling, which is
final and binding on both parties.''
Thailand
On July 12, 2016, the Government of Thailand released a rather
ambiguous statement that did not either support or condemn the
arbitration award. The statement indicated ``Thailand attaches great
importance to maintaining peace and stability in Southeast Asia and
adjacent areas, as well as restoring trust and confidence among
countries in the regions, in order to foster an environment conducive
to sustainable growth and prosperity through cooperation on all
constructive activities.''
The situation in the South China Sea should be addressed through
concerted efforts and by every means, on the basis of mutual trust and
confidence as well as equitable benefit.
Mr. Langevin. Japan has recently committed to increasing its
patrols and its training activities with the United States in the South
China Sea, as well as giving additional military aid to countries such
as Vietnam. The Philippines, conversely, have made little public
mention of the July tribunal ruling. How are our other allies in the
region, specifically Taiwan, reacting to the ruling on the South China
Sea territorial disputes?
Dr. Erickson. The answer to your question is beyond my expertise;
and therefore I am unable to provide you a response.
[all]