The South China Sea (36 page)

On Thursday, 5 March 2009, the
Impeccable
was ploughing its lonely furrow about 140 kilometres southeast of the Yulin submarine base on Hainan Island when a Chinese frigate suddenly sailed across its bow. Two hours afterwards a Chinese spotter plane made 11 low-level passes and the frigate crossed its bow again. On Saturday, 7 March another Chinese naval ship, an ‘Auxiliary-General Intelligence’ (AGI, the euphemism for spy-ship), ordered the
Impeccable
to leave the area or ‘suffer the consequences’. The
Impeccable
didn't leave and the next day the consequences arrived.

We know some of what happened because the US Department of Defense released a video shot by one of the
Impeccable
’s crew – identified as ‘Bobby’ by his shipmates. We join the scene under a clear
blue sky and atop a flat calm sea. The
Impeccable
is already surrounded by a motley flotilla. Two civilian trawlers, apparently bored of fishing, sail up behind the
Impeccable
. Shadowing them are one ship from the Fisheries Law Enforcement Command, one from China Marine Surveillance and the original AGI. Neither of the trawlers is towing nets but both are flying large Chinese flags fore, middle and aft. One, with a battered but newly painted red hull, comes close enough for several faces to be made out pressed against the windows of the bridge. Two other men stand at the bow, one waving a flag. Then the trawler makes a move: black smoke spurts from the funnel as it rushes across the stern of the
Impeccable
, apparently trying to sever the SURTASS. The crew is standing to, ready to repel boarders but taking the whole thing as a bit of a joke. Bobby the cameraman describes the scene: ‘Lou and Wilson man the hoses while the Chinese irritate us to tears’.

Having failed to cut the cable with the keel, one of the two men on the bow of the red trawler reaches into the water with a long pole to try and snag the cable. This amuses the crew even further since the SURTASS weighs 155 tons. ‘He won't be staying on that deck if he does grab it – he'll be gargling sea water,’ says one. At some point, though it's not shown on the video, Lou and Wilson are ordered to turn on the
Impeccable
’s fire hoses to try and dissuade the two ‘fishermen’ with water power. The men aren't dissuaded. They strip off to their underwear and keep on probing with the pole. But after many minutes of futile fishing, the trawler captain changes tactics. With more great black belches, the boat lurches up the port side of the
Impeccable
and then stops right in front. The blue-hulled trawler does the same on the starboard side. The government ships are still loitering nearby – keeping their distance but presumably ready to defend the fishing boats should they be ‘threatened’ by the
Impeccable
. With everyone now stationary the two trawlers gradually move directly towards each other – completely blocking the
Impeccable
’s way forward. Then the white-painted Fisheries Law Enforcement ship moves in close, just behind the blue trawler. Unable to move forward and unable to turn around because of the SURTASS still extended from the stern, the
Impeccable
’s officers consult their superiors.

Outside on the decks, crew members who had been larking around at the beginning of the confrontation fall silent. In the final few seconds of
the video one can clearly be heard telling a colleague: ‘We got the word for emergency destruct.’ The Pentagon could not risk the ship's ultra-sophisticated intelligence-gathering facilities falling into Chinese hands. If there had been an attempt to board the
Impeccable
, a pre-planned operation would have destroyed documents and equipment. But the procedure is kept on hold. Over the radio, the
Impeccable
’s captain announces that he's leaving and requests a safe path out of the area. The Chinese ships oblige and the
Impeccable
beats a slow retreat to the horizon.

In the very public recriminations that followed, each government loudly accused the other of violating international law. The Chinese Foreign Ministry spokesman, Ma Zhaoxu, asserted that the US had ‘conducted activities in China's Exclusive Economic Zone in the South China Sea without China's permission’ and demanded that the United States ‘take effective measures to prevent similar acts from happening’. The White House spokesman Robert Gibbs was adamant, however: ‘We're going to continue to operate in those international waters, and we expect the Chinese to observe international law around that’. But Gibbs’ loose use of the phrase ‘international waters’ went right to the heart of the problem. It may seem arcane but the legal debate over what one country's military vessels can do in another country's offshore Exclusive Economic Zone (EEZ) has already brought the US and China to the edge of conflict. It's a battle between American demands for access to the ‘global commons’ and China's search for security. It's a struggle that will define the future of Asia, and possibly beyond.

* * * * * *

The rules about EEZs are laid down in the United Nations Convention on the Law of the Sea (UNCLOS), agreed in 1982, as we saw in Chapter 4. China is one of 163 UN member states to have ratified UNCLOS. The United States is one of the 30 that have not (of which 16 are land-locked). The US Senate won't ratify the convention because a large number of senators believe UNCLOS would undermine American sovereignty – despite arguments from every relevant arm of American government that it would not. The absence of ratification clearly damages Washington's credibility when it urges others to act in line with UNCLOS. Nonetheless, successive US administrations have argued that all countries are bound by the
convention anyway since it now forms part of ‘customary international law’. For its part, the US Navy says that it always operates in accordance with UNCLOS, regardless of the lack of ratification.

Among the hundreds of articles in UNCLOS are a few stipulating what can and can't be done in another country's Exclusive Economic Zone. The Chinese authorities have seized upon three in particular to argue that the work of the USNS
Impeccable
is illegal: Article 56 – which gives the coastal state jurisdiction over ‘marine scientific research’ in the EEZ; Article 58 – which obliges other countries to ‘have due regard to the rights and duties of the coastal State and … comply with the laws and regulations adopted by the coastal State’; and Article 246 – which states that ‘marine scientific research in the exclusive economic zone and on the continental shelf shall be conducted with the consent of the coastal State’. Since the United States has neither sought nor been granted permission for its research activities they must, according to Beijing, be illegal.

According to Washington, however, all this is completely irrelevant. The
Impeccable
and its sister ships aren't engaged in marine scientific research – they're simply spying. If the
Impeccable
was engaged in peaceful research – such as oil prospecting – then its activities would be illegal under UNCLOS. But since there's no commercial or scientific point to her work, the
Impeccable
can make use of the established rights of any ship to travel through the sea outside the 12-nautical-mile territorial limit. And since, under UNCLOS, states don't have sovereignty beyond their 12-nautical-mile territorial sea, all the laws that China has passed attempting to regulate what can be done in its 200-nautical-mile EEZ are, in the view of Washington, themselves illegal.

UNCLOS was the result of nine years of legal argument between coastal states that wanted to control everything that happened off their shores and maritime states that wanted freedom of navigation. The man who presided over the final debates, Tommy Koh of Singapore, later summed up the compromise: ‘The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted.’
¹
But several countries disagree with that ‘general understanding’ and are
actively seeking to change it. China is the most prominent but Brazil, India, Malaysia, the Maldives, Vietnam and a few others all demand that foreign warships seek permission before sailing through their EEZs. The problem – for China and the world – is that changing the nature of the EEZ in this way would fundamentally alter the rules of the global system. It would also constitute a full-on challenge to the military primacy of the United States by cutting off its direct access between the Pacific and the Middle East.

Moving warships and forces between the western United States and Asia requires freedom of navigation through the Pacific, the South China Sea, the Malacca Straits and the Indian Ocean. Going through Indonesia's internal waters, or between Indonesia and Australia, is navigationally and politically challenging, and heading south, around Australia, adds weeks to the journey to the Persian Gulf and, for a large fleet, tens of millions of dollars in extra fuel costs. If EEZs were closed to military vessels the US would lose access to its bases and allies around Asia. With the US Navy at bay, Taiwan's defensive position would be severely weakened. Other East and Southeast Asian countries might feel similarly compromised. US influence in Southeast Asia could drain away. Even more worryingly, in the eyes of the Pentagon, without guaranteed military access there is no guarantee of civilian access either. A hostile power could cut off the flow of goods, commodities and energy upon which the American economy depends. That's why, since 1979, the United States has pursued its little-known Freedom of Navigation (FON) Program to actively challenge any attempts to close off EEZs.
²
FON combines diplomatic discussions with brute force. Sometimes the State Department just sends a protest letter. From time to time, however, the US Navy simply shows up in another country's EEZ to prove that it can. It's modern gunboat diplomacy, and Washington would say that everyone benefits from its efforts to make sure the seas are open for global trade and security.

Washington is equally forceful in dismissing the validity of Article 301 of UNCLOS, which says: ‘State Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State’. It argues that simply collecting information doesn't amount to a threat of force. China, on the other hand, is adamant. It believes the data are being collected in order to prepare for a possible future conflict and
that American military activity as close as 12 nautical miles to its shores is an existential threat.

Looking out from Hainan Island, China's dilemma seems acute. Ever since Deng Xiaoping ordered the creation of his country's first special economic zone in Shenzhen in 1980, national prosperity has depended upon an arc of cities around the coast, and the movements of imports and exports that sustain them. China has been a net importer of food since 2007 and in September 2013 China surpassed the US to become the world's largest net oil importer just as the shale-fracking boom was starting to lead the US in the direction of energy self-sufficiency.
³
Foreign trade makes up more than half the value of Chinese GDP (compared to less than a third in the United States) yet the country has no clear access to the open sea. The forces of geophysics have thrown up islands all around its coast and the forces of geopolitics have turned them all into potentially hostile neighbours. In the view of Wu Shicun, President of China's National Institute for South China Sea Studies, the number one reason for China's stance on the South China Sea is to ensure strategic access through it to the world's oceans. And a country serious about maintaining that access – and fearful of the intentions of the United States – must necessarily develop the capabilities to protect it. The logic is towards conflict in the South China Sea.

In April 2013 the Ministry of Defence in Beijing issued a White Paper making its objectives plain. ‘With the gradual integration of China's economy into the world economic system, overseas interests have become an integral component of China's national interests’, it said. ‘Security issues are increasingly prominent, involving overseas energy and resources, strategic sea lines of communication (SLOCs), and Chinese nationals and legal persons overseas. Vessel protection at sea, evacuation of Chinese nationals overseas, and emergency rescue have become important ways and means for the PLA to safeguard national interests and fulfil China's international obligations.’
⁴
The contradiction that will shape the future of Asia is this: if China chooses to protect its coastal cities and lengthy supply lines through military means it will inevitably develop the capacity to confront the current naval hegemon. But the American naval hegemon fears that this policy is motivated not by self-defence but by a determination to achieve regional hegemony – and will therefore oppose it. For the
USA, ‘access’ underpins everything. Which is why so much effort – and cash – are now being expended in Washington think-tanks and military headquarters to ensure continued American ‘access’ to every part of the ocean – but particularly the South China Sea.

* * * * * *

In January 2012, the US Department of Defense released its ‘Joint Operational Access Concept’, setting out the task in blunt terms: ‘As a global power with global interests, the United States must maintain the credible capability to project military force into any region of the world in support of those interests.’
⁵
The Joint Operational Access Concept sits in the middle of a hierarchy of strategy documents. Beneath it are more detailed plans setting out how ‘access’ will be won, the most important of which is the ‘Air-Sea Battle Concept’. The Air-Sea Battle Concept was actually drawn up before the others: contemporary US strategy towards China was more or less written around it.

The origins of the Air-Sea Battle Concept can be traced back to the ‘Taiwan Crisis’ of March 1996 when President Bill Clinton's deployment of two US aircraft carrier groups forced the Chinese military to end a series of intimidating exercises being staged in the run-up to Taiwan's general election. That deployment was the trigger for the Chinese People's Liberation Army Navy (PLAN) to begin developing the means of preventing it happening again. In the years after 1996 Chinese military spending shifted significantly towards the navy, air force and missile units and a new phrase,
shashoujian
– assassin's mace – began to enter military documents.
Shashoujian
describes a strategy to use relatively inexpensive weapons to surprise and disable a much more sophisticated adversary.
⁶
As the PLAN's capabilities grew it was given a new mission. In 2001, President Jiang Zemin called on the navy to enhance its ‘far-seas defence’ capabilities and the message was reinforced the following year by his successor, Hu Jintao.
⁷
Then, in January 2007, the Chinese military successfully tested a missile that could destroy an orbiting satellite. The assassin's mace appeared to be getting sharper. The implications for the US military, with its satellite communications and guided weapons, were obvious.