[Congressional Record Volume 162, Number 112 (Tuesday, July 12, 2016)]
[Senate]
[Pages S5006-S5008]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         SUBMITTED RESOLUTIONS

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SENATE RESOLUTION 526--CALLING FOR ALL PARTIES TO RESPECT THE ARBITRAL 
   TRIBUNAL RULING WITH REGARD TO THE SOUTH CHINA SEA AND TO EXPRESS 
  UNITED STATES POLICY ON FREEDOM OF NAVIGATION AND OVERFLIGHT IN THE 
                       EAST AND SOUTH CHINA SEAS

  Mr. GARDNER (for himself, Mr. McCain, Mr. Cotton, Mr. Sullivan, Mr. 
Rubio, and Mrs. Ernst) submitted the following resolution; which was 
referred to the Committee on Foreign Relations:

                              S. Res. 526

       Whereas, on July 12, 2016, the Permanent Court of 
     Arbitration (PCA) of the International Tribunal of the Law of 
     the Sea (``Tribunal''), constituted under the United Nations 
     Convention on the Law of the Sea (UNCLOS), done at Montego 
     Bay December 10, 1982, issued a legally binding ruling on the 
     parties in the case brought at the request of the Republic of 
     Philippines against the People's Republic of China concerning 
     a dispute over the maritime jurisdiction in the South China 
     Sea;
       Whereas the Tribunal supported the Philippines' claim that 
     China breached its sovereign rights, ruling that ``China has, 
     by promulgating its 2012 moratorium on fishing in the South 
     China Sea, without exception for areas of the South China Sea 
     falling within the exclusive economic zone of the Philippines 
     and without limiting the moratorium to Chinese flagged 
     vessels, breached Article 56 of the Convention with respect 
     to the Philippines' sovereign rights over the living 
     resources of its exclusive economic zone''
       Whereas the Tribunal invalidated China's so-called ``nine-
     dash line'' sovereignty claims over the South China Sea, 
     concluding that ``as between the Philippines and China, 
     China's claims to historic rights, or other sovereign rights 
     or jurisdiction, with respect to the maritime areas of the 
     South China Sea encompassed by the relevant part of the 
     `nine-dash line' are contrary to the Convention and without 
     lawful effect to the extent that they exceed the geographic 
     and substantive limits of China's maritime entitlements under 
     the Convention'';
       Whereas, on January 22, 2013, arbitration began when the 
     Philippines served China with a Notification and Statement of 
     Claim pursuant to the UNCLOS provisions concerning the 
     resolution of disputes and the arbitration procedure;
       Whereas, on February 19, 2013, China rejected and returned 
     the Philippines' Notification and since that date has refused 
     to participate in the arbitration proceedings;
       Whereas, on June 21, 2013, the Tribunal was constituted 
     pursuant to the procedure set out in Annex VII of the UNCLOS 
     to decide the dispute presented by the Philippines;
       Whereas, on October 29, 2015, the Tribunal held that ``both 
     the Philippines and China are parties to [UNCLOS] and bound 
     by its provisions on the settlement of disputes,'' that 
     ``China's decision not to participate in these proceedings 
     does not deprive the Tribunal of jurisdiction,'' and that 
     ``the Philippines' decision to commence arbitration 
     unilaterally was not an abuse of the Convention's dispute 
     settlement procedures'';
       Whereas the South China is one of the world's most 
     strategically important commercial waterways, and almost 30 
     percent of the world's maritime trade transits the South 
     China Sea annually, including approximately 
     $1,200,000,000,000 in ship-borne trade bound for the United 
     States;
       Whereas, according to the United States Energy Information 
     Administration, there are approximately 11,000,000,000 
     barrels and 190,000,000,000,000 cubic feet of proven and 
     probable oil and natural gas reserves in the South China Sea;
       Whereas, according to the United States Department of 
     Defense, ``[a]lthough the United States takes no position on 
     competing sovereignty claims to land features in the region, 
     all such claims must be based upon land (which in the case of 
     islands means naturally formed areas of land that are above 
     water at high tide), and all maritime claims must derive from 
     such land in accordance with international law,'';
       Whereas, according to the Department of Defense, ``[s]ince 
     Chinese land reclamation efforts began in December 2013, 
     China has reclaimed land at seven of its eight Spratly 
     outposts and, as of June 2015, had reclaimed more than 2,900 
     acres of land'';
       Whereas, according to Director of National Intelligence: 
     ``China continued its land reclamation efforts at Subi and 
     Mischief Reefs after 5 August 2015, based on commercial 
     imagery. Between that date and late October, when reclamation 
     activity ended, China reclaimed more than 100 additional 
     acres of land.'';
       Whereas, according to the Director of National 
     Intelligence: ``We assess that China has established the 
     necessary infrastructure to project military capabilities in 
     the South China Sea beyond that which is required for point 
     defense of its outposts. These capabilities could include the 
     deployment of modern fighter aircraft, surface-to-air 
     missiles (SAMS), and coastal defense cruise missiles, as well 
     as increased presence of People's Liberation Army Navy (PLAN) 
     surface combatants and China Coast Guard (CCG) large patrol 
     ships.'';
       Whereas, according to the Director of National 
     Intelligence: ``We assess that China will continue to pursue 
     construction and infrastructure development at its expanded 
     outposts in the South China Sea. Based on the pace and scope 
     of construction at these outposts, China will be able to 
     deploy a range of offensive and defensive military 
     capabilities and support increased PLAN and CCG presence 
     beginning in 2016.'';
       Whereas, on May 30, 2015, Secretary of Defense Ashton 
     Carter stated at the Shangri-La Dialogue in Singapore, 
     ``[T]he United States will continue to protect freedom of 
     navigation and [overflight--principles] that have ensured 
     security and prosperity in this region for decades. There 
     should be no mistake: the United States will fly, sail, and 
     operate wherever international law allows, as United States 
     forces do all over the world.'';
       Whereas, in October 2015, January 2016, and May 2016, the 
     United States Navy conducted three freedom of navigation 
     operations (FONOP) in the area, transiting inside the 12-mile 
     nautical zone of the contested features in the South China 
     Sea;
       Whereas Article 5 of the Mutual Defense Treaty Between the 
     United States and the Republic of the Philippines, signed on 
     August 30, 1951, states that ``an armed attack on either of 
     the Parties is deemed to include an armed attack on the 
     metropolitan territory of either of the Parties, or on the 
     island territories under its jurisdiction in the Pacific or 
     on its armed forces, public vessels or aircraft in the 
     Pacific''; and
       Whereas the United States reiterates its security 
     commitment to Japan and reaffirms that Article 5 of the 
     United States-Japan Treaty of Mutual Cooperation and Security 
     covers all territories under Japan's administration, 
     including the Senkaku islands; Now, therefore, be it
       Resolved, That the Senate--
       (1) supports the July 12, 2016, ruling issued by the 
     Tribunal as binding on all parties in the case, and calls on 
     all claimants to pursue peaceful resolution of outstanding 
     maritime claims in the South China Sea consistent with 
     international law;
       (2) urges all parties to take action to implement the 
     Declaration on the Conduct of Parties in the South China Sea 
     and take steps towards early conclusion of a meaningful Code 
     of Conduct, which would provide agreed upon rules of the road 
     to reduce tension among claimant states;
       (3) opposes any actions in the South China Sea to change 
     the status quo by coercion, force, or the threat of use of 
     force;
       (4) calls on the Government of the People's Republic of 
     China to cease all reclamation and militarization activities 
     in the South China Sea and end provocative actions in the 
     East China Sea, which undermine peace and stability in the 
     region;
       (5) reaffirms Article V of the Mutual Defense Treaty 
     Between the United States and the Republic of the 
     Philippines;
       (6) reaffirms Article V of the Treaty of Mutual Cooperation 
     and Security between the United States and Japan;
       (7) urges the Secretary of State to utilize all diplomatic 
     channels to communicate worldwide unwavering United States 
     support for freedom of navigation and overflight in the South 
     China Sea; and
       (8) urges the Secretary of Defense to routinely enforce 
     freedom of navigation and overflight in the East and South 
     China Seas, which is critical to United States national 
     security interests and peace and prosperity in the Asia-
     Pacific region.

  Mr. GARDNER. Mr. President, I rise to speak about American leadership 
in the Asia-Pacific region, an area that will be more and more critical 
to our economy and national security for generations to come.
  Earlier today, an international tribunal issued an important ruling 
regarding maritime claims in the South China Sea, which can potentially 
have

[[Page S5007]]

lasting consequences for peace and stability in that region and global 
security in general as the world chooses between an order of rule or an 
order of lawlessness. Today, the tribunal ruled in favor of our ally 
the Philippines and against the People's Republic of China, which has 
refused to recognize and participate in the tribunal altogether, a 
tribunal sanctioned under international agreement both nations are a 
party to.
  The tribunal began its work on January 22, 2013, when the Philippines 
served notice to China in international court regarding the violations 
of its sovereignty and China's claims in the South China Sea.
  On February 19, 2013, China rejected and returned the Philippines' 
notification, and since that date, China has refused to participate in 
the arbitration proceedings.
  On October 29, 2015, the tribunal held that despite China's 
nonparticipation, it has the jurisdiction to deliver a binding legal 
ruling in this case since both nations are treaty participants.
  Today, the panel ruled that China ``breached the sovereign rights of 
the Philippines'' with regard to maritime disputes between the two 
nations. More importantly, the tribunal invalidated China's sovereignty 
claims over almost the entirety of the South China Sea, stating that 
``China's claims to historic rights or jurisdiction, with respect to 
the maritime areas of the South China Sea encompassed by the relevant 
part of the `nine-dash line' are contrary to the Convention and without 
lawful effect.''
  While the United States is not directly a party to this dispute and 
takes no position on the sovereignty claims among the various 
claimants, this ruling is important for many reasons:
  First, the South China Sea is one of the most important commercial 
waterways in the world. Almost 30 percent of the world's maritime trade 
transits the South China Sea annually, including approximately $1.2 
trillion in ship-borne trade bound for the United States.
  Moreover, according to the U.S. Energy Information Administration, 
there are approximately 11 billion barrels and 190 cubic feet of proven 
and probable oil and natural gas reserves in the South China Sea itself 
which China wants to claim.
  Second, the ruling reinforces the right of our military to operate 
freely in the region, utilizing our longstanding rights of 
international transit on the high seas--the rights long established by 
international law.
  On May 30, 2015, speaking at the Shangri-La Dialogue in Singapore, 
Secretary of Defense Ash Carter stated:

       The United States will continue to protect freedom of 
     navigation and overflight--principles that have ensured 
     prosperity and security in this region for decades. There 
     should be no mistake: The United States will fly, sail, and 
     operate wherever international law allows, as U.S. forces do 
     all over the world.

  The United States has since conducted three freedom of navigation 
operations--or FONOPs--in the area in October of 2015, January of 2016, 
and May of 2016, transiting inside the 12-mile nautical zone of the 
contested features in the South China Sea.
  Last month, I attended the Shangri-La Dialogue along with a number of 
my Senate colleagues, and we heard a tremendous amount of concern from 
regional leaders, not only about the South China Sea but also about 
whether or not the United States can endure regionally and globally. 
The South China Sea and what happens there are important tests of 
American leadership and our ability to support our close allies in the 
face of aggression that is outside of international norms.
  So we need to start this conversation, as well, by asking the simple 
question: How did we get here?
  I wish to point out a chart that helps show what is going on in the 
South China Sea. The situation in the South China Sea stems from a 
Chinese claim called the nine-dash line. It is the red dash line here 
in the South China Sea, which covers more than 90 percent of the South 
China Sea. We can see it on the chart, within the lines.
  China has never offered any detailed explanation or any legal basis 
for this claim. As the ruling stated today by the tribunal:

       As far as the Tribunal is aware, China has never expressly 
     clarified the nature or scope of its claimed historic rights. 
     Nor has it ever clarified its understanding of the meaning of 
     the ``nine-dash line.''

  For decades we did not pay much attention; the U.S. did not pay much 
attention to these groundless claims because, while there are certainly 
incidents and skirmishes, China did not take the highly coercive 
actions to enforce its claims that we see today. However, over the last 
several years, China has significantly upped the ante and undertaken a 
massive effort to reclaim a number of the disputed features in the 
South China Sea and to militarize these islands.
  According to the Department of Defense, ``[s]ince Chinese land 
reclamation efforts began in December of 2013, China has . . . 
reclaimed more than 2,900 acres of land'' and ``has deployed artillery, 
built aircraft runways and buildings and positioned radars and other 
equipment.''
  According to the Director of National Intelligence:

       We assess that China has established the necessary 
     infrastructure to project military capabilities in the South 
     China Sea beyond that which is required for point defense of 
     its outposts. These capabilities could include the deployment 
     of modern fighter aircraft, surface-to-air missiles, and 
     coastal defense cruise missiles, as well as increased 
     presence of Peoples' Liberation Army Navy surface combatants 
     and China Coast Guard large patrol ships.

  With these capabilities, China could easily intimidate and, if 
needed, overpower its much smaller and less capable neighbors.
  So let me point out the second chart here today. In the next year, we 
will be able to see just how fast the Chinese can build these islands.
  According to reports and expert assessments, what we are seeing here 
is ``an artificial island''--what it looked like in the very beginning, 
the original structure--``covering 75,000 square yards--about 14 
football fields--including two piers, a cement plant and a helipad, at 
a land formation called Hughes Reef. . . . The reef, which is above 
water only at low tide, lies about 210 miles from the Philippines and 
660 miles from China.''
  So here is what this looked like in 2014--this original structure 
right here, the Hughes Reef. We can see what it looked like here, and 
in January of 2015: 75,000 square yards of land reclamation activities, 
the helipad over here, the original structure--we can see it right 
here--and the cement plant. There are 14 football fields worth of land 
reclamation on a structure that is only 210 miles away from the 
Philippines yet 660 miles away from China.
  These actions not only show blatant disregard for the rights of the 
other claimants in the South China Sea, but it undermines international 
law.
  This is what the international tribunal confirmed today. Now it is up 
to the United States and the world to address the question as to what 
comes next.
  Make no mistake, through these activities, China has sent a message 
not only to its neighbors but also to America as a Pacific power, and 
we must be ready to answer.
  So today I am proud to submit a resolution with my colleagues, 
Senators McCain, Cotton, Sullivan, Rubio, and Ernst, that offers some 
policy guidelines moving forward on how to address the challenge of the 
South China Sea. Our resolution, first of all, supports the July 12, 
2016, ruling issued by the tribunal as binding on all parties and calls 
on all parties to pursue peaceful resolution of outstanding maritime 
claims in the South China Sea consistent with international law. It 
urges all parties to take action to implement the Declaration on the 
Conduct of Parties in South China Sea and take steps toward early 
conclusion of a meaningful, binding code of conduct which would provide 
agreed-upon rules of the road to reduce tension among claimant States.
  It states that we will oppose any actions in the South China Sea to 
change the status quo by coercion, force, or the threat of use of 
force.
  It calls on the People's Republic of China to cease all reclamation 
and militarization activities in the South China Sea and to end 
provocative actions in the East China Sea, which undermine peace and 
stability in the region.
  Furthermore, the resolution reaffirms article V of the Mutual Defense 
Treaty between the United States and the Republic of the Philippines, 
and article V of the Treaty of Mutual Cooperation and Security between 
the United States and Japan.

[[Page S5008]]

  It urges the U.S. State Department to utilize all diplomatic channels 
to communicate worldwide, unwavering U.S. support for freedom of 
navigation and overflight of the South China Sea, and it urges the U.S. 
Department of Defense to routinely enforce freedom of navigation and 
overflight in East and South China Seas, which is critical to U.S. 
national security interests and peace and prosperity in the Asia-
Pacific region.
  It is my sincere hope that instead of an escalation, China chooses 
the opposite track and abides by this ruling and immediately ceases its 
destabilizing activities. But should that not come to pass, the United 
States and our allies must be ready to lead and defend our allies, our 
values, and our principles.
  The world is better served when those of us around the globe 
recognize rules of international behavior, international law, and that 
we can together reinforce responsible behavior. And we will know going 
forward from this ruling if China is going to be a responsible rising 
power that respects the rules of international law, or if the history 
books will later look back at this time period and show a nation that 
decides to ignore international law, to ignore the law that binds 
itself with its neighbors and, instead, acts out of self-gain and self-
interests.
  No matter what happens going forward, the United States must show 
leadership, resolve, and we must show our allies that we are committed 
to making sure that international law is respected and upheld.
  Mr. President, I yield the floor.

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