Avoiding the False China-U.S.

Narrative in the South China Sea

Author(s): Gregory B. Poling
Source: American Journal of Chinese Studies, Vol. 23, SPECIAL ISSUE I (JULY 2016), pp.
135-144
Published by: American Association of Chinese Studies
Stable URL: http://www.jstor.org/stable/44289144
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 Avoiding the False China-U.S. Narrative
in the South China Sea

Gregory B. Poling*

ABSTRACT

The South China Sea disputes are ultimately about the way the mari-
time realm will be governed in the twenty-first century - either ac-
cording to the strictures of the United Nations Convention on the
Law of the Sea and customary international law, as most nations
around the world want, or via a return to might-makes-right geopoli-
tics, as favored by China. The United States, Australia, Japan, the Eu-
ropean Union, and others have weighed in on the side of Southeast
Asian claimants who are being bullied by China, demanding that the
disputed be settled peacefully and in accordance with international
law. These states recognize that in the long-run, only a decision by
Beijing to alter its behavior and bring its maritime claims in-line with
international law will allow a peaceful resolution of the disputes. As
such, this coalition of like-minded nations is engaged in what could
be a decades long campaign to criticize and cajole Beijing - publiciz-
ing and challenging the excessiveness of its claims while trying to
highlight the value of supporting rather than challenging the inter-
national system. In order to deflect criticism and blunt these efforts,
Beijing has developed a counter-narrative and is actively peddling it
abroad. In this narrative, China is the victim of a vicious U.S. policy
of containment, one in which puppet states like the Philippines and
Japan are eager to take part. Ultimately, the success of the interna-
tional campaign to convince Beijing to change course could depend
in large part on whether, and to what degree, this counter-narrative
can be dispelled.

Keywords: South China Sea, Philippines, Containment, Rebalance, Pivot,

International Law

I. INTRODUCTION

The debate over the South China Sea disputes has since 20
a number of competing narratives. U.S., Southeast Asian, and
officials have insisted that steadily rising tensions in disputed
to the excessiveness and ambiguity of Chinese claims, especial

* Gregory Poling is Director of the Asia Maritime Transparency Initiativ

the Southeast Program at the Center for Strategic and International Studies
He oversees research on U.S. foreign policy in the Asia Pacific, with a part
maritime domain and the countries of Southeast Asia. His research interests include the South
China Sea disputes, democratization in Southeast Asia, and Asian multilateralism.

135

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136 AMERICAN JOURNAL OF CHINESE STUDIES [Vol. 23:135

mous "nine-dash line" that was first publicized in Nationalist Chinese docu-
ments and was adopted by the People's Republic of China following the
Chinese civil war.

The current round of spiraling tensions is, in this narrative, traced to

2009 because that year marked the first time that China submitted the nine-
dash line to an international body. When Malaysia and Vietnam submitted a
joint claim to their extended continental shelves in the southern reaches of
the South China Sea,1 China objected via a note verbal to the United Nations
Commission on the Limits of the Continental Shelf that featured a map of
the nine-dash line as a representation of Beijing's claims.2 Predictably, the
Southeast Asian claimants including Indonesia which does not lay claim to
any of the disputed land features in the South China Sea, objected to China's
note verbal with their own, decrying the nine-dash line as inconsistent with
international law.3
At the Association of Southeast Asian Nations (ASEAN) Regional Forum
(ARF) in Hanoi in 2010, then-secretary of state Hillary Clinton voiced U.S.
concern over the South China Sea disputes before the 26 other members of
the forum. She declared the disputes a matter of national interest to the
United States, which is committed to seeing them resolved peacefully and in
accordance with international law. Clinton raised the issue at the urging of
ASEAN states, particularly Vietnam which was the ASEAN chair that year, and
only did so after all ASEAN states had stood to voice their own concerns.4
The Chinese delegation was caught flat-footed, storming out of the room and
then coming back to berate its Asian neighbors for failing to treat China with
the proper respect due a "big brother."
Chinese officials have since that 2009 ARF become more diplomatic in
their reactions to fellow claimants' complaints regarding the South China
Sea. But for Southeast Asian states, especially the Philippines and Vietnam,
that disregard for the legal rights of neighboring states has become a key part
of the narrative surrounding the South China Sea disputes. To them, the
continued ambiguity of Chinese claims, Beijing's refusal to negotiate multi-
laterally in good faith or enter arbitration, and regular provocations such as
the April 2012 Scarborough Shoal standoff5 or May 2014 deployment of the
Haiyang Shiyou 981 oil rig in disputed waters off the Vietnamese coast,6 pull

1 Malaysia and the Socialist Republic of Vietnam, Joint Submission to the Commission on
the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations
Convention on the Law of the Sea 1982 in Respect of the Southern Part of the South China Sea
(May 2009) , http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysv
nm_33_2009.htm.
2 Permanent Mission of the People s Republic of China to the United Nations, Note
Verbale CML/ 17/2009, May 7, 2009, http://www.un.org/depts/los/clcs_new/submissions_files
/mysvnm33_09/chn_2009re_mys_vnm_e.pdf.
3 Permanent Mission of the Republic of Indonesia to the United Nations, Note Verbale
No. 480/POL-703/VII/10, July 8, 2010, http://www.un.org/depts/los/clcs_new/submissions_
files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf.
4 U.S. Signals to China It Won t Keep Out of South China bea, Bloomberg, July zô , 2U1U,
http://www.bloomberg.com/news/articles/2010-07-23/u-s-says-settling-south-china-sea-disputes-
leading-diplomatic-priority-.
5 Carlyle A. Thayer, "Standoff in the South China Sea," YaleGlobaly June 12, 2012, http://
yaleglobal.yale.edu/content/standoff-south-china-sea.
6 Ernest Z. Bower and Gregory B. Poling, "China-Vietnam Tensions High over Drilling Rig
in Disputed Waters," CSIS Critical Questions , May 7, 2014, http://csis.org/publication/critical-
questions-china-vietnam-tensions-high-over-drilling-rig-disputed-waters.

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July 2016] AVOIDING THE FALSE CHINA-U.S. NARRATIVE 137

back the curtain on China's disregard for smaller states as independent and
legally coequal actors on the international stage.
The fear that a rising and increasingly confident (some Southeast Asian
states would say arrogant) China will disregard the rights of neighboring
states in pursuit of its own narrow interests has been fed by other regional
countries, particularly Japan. In Tokyo's narrative, the South China Sea is
part of the same contested littoral as the East China Sea and, along with the
disputed China-India border, shows a consistently expansionist China that is
pushing on all fronts against the legitimate rights and interests of its more
peaceful and responsible neighbors. Given its own disputes in the East China
Sea, and escalating Chinese provocations around the Senkaku/Diaoyu Is-
lands since Tokyo nationalized them in 2013, this narrative out of Japan is
unsurprising. It colors the way that Japan approaches Southeast Asia, and
goes a long way toward explaining the remarkably diplomatic success the
Shinzo Abe government has had in forging closer ties with ASEAN states.
It has also contributed to the success of the Abe government's push to
reinterpret Japan's pacifist constitution to allow for the right of collective self-
defense, and led to a remarkable reentry of Japan in the security sphere in
Southeast Asia. Tokyo in 2014 lifted its long-standing prohibition against the
export of military hardware, allowing it to begin small arms sales to neighbors
and begin to compete for large procurement projects such as Australia's out-
standing bid for new submarines. Japanese Self Defense Forces have begun
to cooperate more robustly in multilateral and bilateral training exercises
around the region and intelligence gathering, for instance via P-3 flights over
disputes waters near the Philippines. When Philippine president Benigno
Aquino visited Tokyo in April 2014, he inked a landmark defense industry
cooperation agreement with Prime Minister Abe and the two countries have
begun negotiations on a visiting forces agreement to allow Japanese troops
regular rotational access to the Philippines - a remarkable development
given historical sensitivities, and one which indicates just how successfully the
narrative of an aggressive, threatening China has taken hold in many South-
east Asian capitals.
These narratives out of ASEAN capitals and Tokyo reflect the understand-
able fears of those states on China's doorstep. They also feed into and rein-
force the central concern that governments in these countries share with
their counterparts in Australia, India, Europe, and the United States. This is
the narrative that Secretary Clinton elaborated at the 2009 ARF and which
U.S. officials have raised at every subsequent multilateral forum in Asia and
in every bilateral meeting with Chinese counterparts: the reason for the con-
tinuing escalation of the South China Sea disputes is that Beijing remains
committed to an ambiguous extralegal claim at the expense of its neighbors.
The nine-dash line not only disadvantages fellow claimants but, more impor-
tantly in the eyes of interested outside parties, it fundamentally undermines a
half-century of negotiated international law regarding rights and responsibili-
ties in the world's oceans.

U.S. officials have consistently maintained that the United States does not
take sides regarding the overlapping territorial and maritime disputes in th
South China Sea, but does not claim neutrality regarding how those disputes
are resolved.7 The United States has three stated interests in the South Chin

7 U.S. Department of State, "China: Maritime Claims in the South China Sea," Limits in th
Sea 143, December 5, 2014, footnote 25, http://www.state.gov/documents/organization/23493

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138 AMERICAN JOURNAL OF CHINESE STUDIES [Vol. 23:135

Sea: preserving freedom of navigation and overflight where allowed by inter-

national law, seeing disputes resolved peacefully so as to maintain stability in
the Asia Pacific, and ensuring any resolution is in accordance with interna-
tional law primarily embodied by the United Nations Convention on the Law
of the Sea (UNCLOS). While much attention has been paid to the first, and
the second seems self-evident, the third of these points is the most vital for
the United States and its partners.
China's nine-dash line is fundamentally at odds with both UNCLOS8 and
customary international law regarding the rights of all states to access their
territorial seas, exclusive economic zones (EEZs), and continental shelves.9
The Chinese Ministry of Foreign Affairs has since early 2012 stated that
China's claims in the South China Sea extend only to the islands - meaning
the Spratly's, Paracels, Scarborough Shoal, and the (entirely underwater)
Maccles field Bank - and their "adjacent waters."10 However, even the most
generous interpretation of UNCLOS regarding the ability of these features to
generate EEZs and continental shelves leads to a claim far less extensive than
the nine-dash line.11 Beijing continues to object to other states, primarily the
Philippines and Vietnam, engaging in economic activities like oil and gas
exploration within waters that are indisputably beyond the bounds of any
maritime zones generated by the disputed land features within the South
China Sea. China has also continued to take actions, such as the declaration
in 2012 of oil and gas concession blocks off the Vietnamese coast, in areas
that lie well outside any adjacent waters of the Spratly's or Paracels.12 Even
more damning, Chinese forces continue to make shows of sovereignty and
Beijing maintains claims to entirely submerged features like James Shoal off
the coast of Malaysian Borneo13 and Macclesfield Bank that it deems the core
of the Zhongsha islands, despite the fact that such features are legally part of
the seabed and not eligible for independent claims of sovereignty. All of this
shows that, despite occasional statements to the contrary, China's goal re-
mains control over the entirety of the nine-dash line at the expense of the
claims of surrounding states.
For the United States and outside parties like the European Union, Aus-
tralia, and India that are taking an increasing interest in the South China Sea
disputes, the primary concern is that if the nine-dash line were allowed to
stand, UNCLOS would be fundamentally undermined. Were China allowed

.pdf; Daniel Russel, Remarks at the Fifth Annual South China Sea Conference, Center for Strate-
gic and International Studies, Washington, DC, July 21, 2015, http://www.state.gOv/p/eap/rls/
rm/2015/07/245142.htm.
8 See UN Convention on the Law of the Sea (UNCLOS), December 10, 1982, Articles 3-16,
55-85, and 121, https://www.un.org/depts/los/convention_agreements/texts/unclos/UN
CLOS-TOC.htm.
9 For the inclusion of these rights in customary international law, see 1 emtonal ana Ma
time Dispute ( Nicaragua v. Colombia ), Judgment, I.C.J. Reports 2012 627, 666, 673-4, http:/ /www.icj
.org/ docket/files/ 1 24/ 171 64.pdf.
10 Ministry of Foreign Affairs of the People s Republic ol China, foreign Ministry Spok
person Hong Lei's Regular Press Conference on February 29, 2012," March 1, 2012, http
www.fmprc.gov.cn/eng/xwfw/s2510/t910855.htm.
1 1 For one interpretation of the area legally in dispute, see Gregory B. Poling, The Sou
China Sea in Focus: Clarifying the Limits of Maritime Dispute (Washington, DC: CSIS/Rowma
Littlefield, 2013) , http://csis.org/files/publication/130717_Poling_SouthChinaSea_Web.pdf
12 Ibid, 23-25.
13 Bill Hayton, "How a Non-Existent Island Became China s Southernmost Territory
South China Morning Post, February 9, 2013, http://www.scmp.com/comment/insight-opini
article/ 1 1 461 5 1 /how-non-existent-island-became-chinas-southernmost-territory.

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July 2016] AVOIDING THE FALSE CHINA-U.S. NARRATIVE 139

exclusive control over an ambiguous claim to maritime space and seabed far
beyond the allowances of UNCLOS, then it would only be rational for other
states to do the same. Why would Russia not make excessive claims in the
Arctic or Iran in the Persian Gulf if China is permitted to in the South China
Sea? The resulting narrative surrounding the South China Sea disputes is
therefore not one of China versus its neighbors, much less China versus the
United States, but rather China versus the international community.

II. THE CHINESE NARRATIVE

Authorities in Beijing remain adamantly opposed to making

sions demanded by both Southeast Asian states and most outside
marily a clarification of the meaning of the nine-dash lin
international law. Instead, they have developed their own counte
rative regarding the escalating tensions in the South China Sea i
to deflect international criticism and rationalize Chinese activities. The crux
of this narrative from Beijing is in many ways part of the larger, long-standing
official narrative of Chinese victimization. Escalating tensions are not due to
Chinese actions at all. They are primarily the fault of the Obama administra-
tion's "pivot," or "rebalance" to the Asia Pacific, which China sees as a con-
cealed strategy of containment. China's submission of the nine-dash line is
not, therefore, the starting point of current tensions. Instead, Secretary Clin-
ton's remarks at the ARF were.
According to authorities in Beijing, the United States has consistently ral-
lied Asian states over the last six years in opposition to China's legitimate
claims in both the East and South China Seas. Chinese leaders do not see the
Philippines or Vietnam as standing up to Chinese coercion and objecting to
its claims because of their own national interests, but instead because of U.S.
troublemaking. This helps create a self-serving narrative in which any coun-
tervailing action by other claimants, for instance Vietnam's vigorous opposi-
tion to the deployment of the Haiyang Shiyou 981, are part of a U.S.
conspiracy against which China's only rational response can be further esca-
lation. Similarly, any U.S. efforts (or those of allies like Australia and Japan)
to assist claimant states with capacity building, intelligence sharing, or arms
transfers to stand up to China are actually acts of aggression retroactively
justifying acts by China to boost its power projection in disputed waters.
Chris Yung at the National Defense University has shown that this narra-
tive is false based strictly on timing. Based on an exhaustive survey of publicly
available data, he has shown that the increase in the frequency of violent run-
ins between Chinese and Southeast Asian forces, as well as escalatory activi-
ties like facility building in the South China Sea, predated the Obama admin-
istration's rebalance and Clinton's statements at the ARF.14 This has not,
however, prevented Beijing from doggedly sticking to its narrative, and sell-
ing it to an increasingly intransigent domestic audience. This creates an un-
healthy echo chamber within Chinese policymaking in which the effort to
shift blame on the South China Sea by hiding facts domestically leads to a
growing unwillingness of non-experts and the populace at large to counte-
nance compromise, encouraging China's leaders to take more escalatory ac-
tion and therefore requires that they sell this counter-narrative even harder.

14 Christopher Yung and Patrick McNulty, "Claimant Tactics in the South China Sea: By
the Numbers," East-West Center Asia Pacific Bulletin 314, June 16, 2015, http://www.eastwest
center.org/system/tdf/private/apb3 1 4.pdf?file=l &type=node&id=35 1 90.

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 140 AMERICAN JOURNAL OF CHINESE STUDIES [Vol. 23:135

Chinese authorities, as well as sympathetic writers, have also sought to

deflect criticism of China's island-building campaign in the Spratly's by insist-
ing that Beijing is merely copying what other claimants have done for years.
According to this narrative, every claimant is as guilty as Beijing of altering
the status of features in the South China Sea in contravention of interna-
tional law and escalating tensions. But this narrative too is false.15
China's argument against the Philippines is the easiest to dismiss. No evi
dence has been offered to show that Manila has engaged in large-scale dredg
ing or reclamation work, other than the expansion of a narrow strip of san
off Thitu Island decades ago to allow for the construction of a runway. The
Philippines has engaged in some reclamation to prevent erosion at feature
just as all claimants have (and just as occurs at coastal and island beache
around the world) . Most importantly, Manila has never attempted to create
rock or island from a low-tide elevation, as China has at three of the seven
features it occupies. That is by far the most legally troubling, and most pro
vocative of China's actions.
Malaysia also engaged in reclamation work at Swallow Reef, on which it
built an airstrip, luxury scuba diving resort, and small naval base in the 1980s.
The natural rock or island was expanded from approximately 25 acres to 85
acres.16 That is admittedly substantial, but a drop in the bucket compared to
the thousands of acres built by China in the last two years. And, as with Thitu
Island, it is important to recognize that Malaysia construction did not seek to
alter either the geographic or legal status of Swallow Reef.
Among the claimants, Vietnam presents the most tempting target for the
disinformation campaign. It occupies the most features, much of that occu-
pation is not well-documented, and the government in Hanoi has tradition-
ally been more reticent than Manila to disclose details of its activities in the
Spratly's. Worse, it clearly has engaged in reclamation work on some of its
features, most obviously Sand Cay and West (London) Reef,18 though
again, at a tiny fraction of the scale pursued by China. According to unveri-
fied Chinese sources, it has also done reclamation at Central (London) Reef,
Grierson Reef, Namyit Island, Pearson Reef, Sin Cowe Island, and Southwest
Cay.
In many of these cases, Vietnam clearly engaged in reclamation after the
signing of the 2002 Declaration of Conduct for Parties in the South China
Sea, thereby undercutting some (but not all) of its moral authority in saying
China's island building violates the spirit of the agreement. This is not help-
ful, and is precisely why Secretary of Defense Ash ton Carter has called on all
parties to refrain from further reclamation and construction, and did so dur-
ing his meeting in Hanoi with Defense Minister Phung Quang Thanh. But
again, key differences must be pointed out - Hanoi's reclamation work has
been a drop in the bucket compared to Beijing's, and to date, there has been
no documentation of Vietnam reclaiming a low-tide elevation or submerged

15 Much of the following section originally appeared in Gregory Poling, "Sophistry and
Bad Messaging in the South China Sea," July 1, 2015, http://amti.csis.org/sophistry-and-bad-
messaging-in-the-south-china-sea/ .
16 Chen Chu-chun, Malaysia to Upgrade Air Defense ot b China bea Naval Base, Want
China Times, February 10, 2015, http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20
1 502 1 000005 3&cid= 1101.
17 "Sand Cay Tracker," CSIS Asia Maritime Transparency Initiative, accessed September
27, 2015, http://amti.csis.org/sand-cay-tracker/.
18 "West Reef Tracker," CSIS Asia Maritime Transparency Initiative, accessed September
27, 2015, http://amti.csis.org/west-reef-tracker/.

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July 2016] AVOIDING THE FALSE CHINA-U.S. NARRATIVE 141

feature to turn it into a rock or island. In other words, like the Philippines
and Malaysia, Vietnam has engaged in reclamation or expansion, but not
outright island building as China has.
Of late, the U.S. government has contributed to this muddying of the
waters. While testifying before the Senate Foreign Relations Committee on
May 13, Assistant Secretary of Defense David Shear noted that "Vietnam has
48 outposts; the Philippines, 8; China, 8; Malaysia, 5, and Taiwan, l."19 The
fact that Vietnam had "48 outposts" was news to those who closely follow the
South China Sea, both in the United States and in the region. In fact, it was
more than twice what most experts cite as the number of features occupied
by Vietnam. Many assumed Shear had misspoken, but then Secretary Carter
repeated the figure in his speech at the Shangri-La Dialogue.20
It did not take long for casual South China Sea watchers, and those more
sympathetic to China's position, to jump on the 48 figure as evidence that
Vietnam has been the real aggressor. In the Diplomat, Greg Austin asserted
that Vietnam has doubled the number of features it had occupied since
1996.21 What this and similar arguments overlooked is that Shear and Carter
did not say that Vietnam occupies 48 features, they said that it has 48 "out-
posts." For some reason, Washington decided to individually count every visi-
ble structure Vietnam has built on low-tide elevations and other features -
something it never did for Chinese-occupied features before the island bui
ing campaign.
This means the U.S. government is counting Great Discovery Reef, fo
example, three times because Vietnam has built three different "pillbox
structures at different locations around the reef. Combined, those structures
cover approximately 3.5 acres, with the two farthest from each other sepa-
rated by about 5 nautical miles, and the two closest by less than 1 nautical
mile. By comparison, China's work at Fiery Cross Reef stretches about 2 nau-
tical miles from end to end and covers 800 acres, with numerous facilities.
Not only is this method of accounting for occupation in the Spratly's ex-
tremely misleading, but by not explaining its methods, Washington has
helped fuel China's false narrative.
If the long game for the Southeast Asian claimants, the United States, and
like-minded nations is to rally international opprobrium against China in the
hopes that Beijing will recognize the costs of its extralegal claims, then mes-
saging that plays into China's narrative of victimization is a sure way to lose.

Countering China False Narrative

The long-term goal of the United States and like-minded states including
the Southeast Asian claimants in the South China Sea is convincing China's
leaders that their own interests are undermined by the continued refusal to
clarify the nine-dash line in order to preserve the global maritime commons.
For this effort to be successful, the largest possible international coalition

19 David Shear, "Safeguarding American Interests in the East and South China Seas" [Tes-
timony before the U.S. Senate Committee on Foreign Relations, Washington, DC, May 13,
2015] , http:/ /www.foreign.senate.gov/hearings/safeguarding-american-interests-in-the-east-and-
south-china-seas.

20 Ashton Carter, "A Regional Security Architecture where Everyone Rises" [Speech at the
IISS Shangri-La Dialogue, Singapore, May 30, 2015], http://www.defense.gov/News/Speeches/
Speech-View/ Ar tide/ 606676.
21 Greg Austin, "Who Is the Biggest Aggressor in the South China Sea?," Diplomat, June 18,
2015, http://thediplomat.com/2015/06/who-is-the-biggest-aggressor-in-the-south-china-sea/.

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142 AMERICAN JOURNAL OF CHINESE STUDIES [Vol. 23:135

must be formed to criticize and impose diplomatic and other costs on China
for its intransigence. Primarily, this involves the lost opportunities China in-
curs for being seen as unwilling to play by the rules and follow-through on its
international commitments (such as UNCLOS and the 2002 Declaration of
Conduct that it signed with ASEAN). Beijing's response to efforts to rally
international opinion against its South China Sea activities - efforts that have
been fairly successful - is to flip the narrative from one of China versus the
international community to one of a rising China versus a containing United
States. In light of this, there are a number of policy options the United States
should consider.22
• In light of China's reclamation work , the Department of Defense should conduct a freedom of
navigation operation to assert that the new features built on low-tide elevations are legally artifi-
cial islands entitled under international law to no more than a 500-meter safety zone. Reports
leaked in May 2015 that the Pentagon was considering performing FON operations
within 12 nautical miles of certain features on which China has performed reclama-
tion or island building in the Spratly's. Since then, the U.S. Navy has actually sailed
within 12-nautical-miles of three Chinese-occupied features in the South China Sea -
Subi Reef, Triton Island, and Fiery Cross Reef. But none of these operation was in-
tended to challenge the actual status of a Chinese artificial island, or the maritime
entitlement that it legally generates.

The first of the FON operations, at Subi, caused considerable consternation as the
Pentagon refused for months to clarify the operation's intent. Eventually it emerged
that the U.S. Department of Defense considered that Subi Reef - a low-tide elevation
which was below water at high-tide prior to China's reclamation work - could be used
as a basepoint from which to extend the territorial sea of a tiny, uninhabited islet
nearby. Therefore the FON operation was performed in such a way as would be
consistent with innocent passage - a legal term meaning that the ship did nothing
but transit as expeditiously as possible. This type of transit - and only this type - is
permitted within another country's territorial sea. The latter two were explicitly per-
formed as innocent passage because Triton Island (in the Paracel chain) and Fiery
Cross Reef (in the Spratly's) , were both above water to some degree before China's
reclamation. What the Pentagon was contesting with those operations was Beijing's
insistence that foreign ships give prior notification before transiting its territorial
sea - a requirement not found in UNCLOS.

These operations are a good start, but they have not moved beyond innocent
passage to really challenge the legal effects of China's island-building or its attempts
to impose restrictions on passage through large areas of water and air around the
features. Nor has the rationale behind the FON operations been made clear, al-
lowing significant misinformation to spread through the press and analytical
communities.

Each year the U.S. military performs FON operations and other activities to chal-
lenge excessive maritime claims around the globe. In fiscal year 2014, the U.S. Navy
performed such operations to challenge the claims of 19 nations, including China,
Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam. In light of China's rec-

22 The following appeared in Gregory Poling, "Rationalizing U.S. Goals in the South
China Sea ,n Journal of Political Bisk 3, no. 9 (September 2015): http://www.jpolrisk.com/rational
izing-u-s-goals-in-the-south-china-sea/.
23 Adam Entous, Gordon Lubold, and Julian E. Barnes, U.S. Military Proposes Challenge
to China Sea Claims," Wall Street Journal, May 12, 2015, http://www.wsj.com/articles/u-s-military-
proposes-challenge-to-china-sea-claims-l 43 1 463920.
24 "Document: SECDEF Carter Letter to McCain on South China Sea Freedom of Naviga-
tion Operation," USNI News, January 5, 2016, https://news.usni.org/2016/01/05/document-
secdef-carter-letter-to-mccain-on-south-china-sea-freedom-of-navigation-operation.
25 U.S. Department of Defense, Freedom of Navigation Report for Fiscal Year 2014,
March 23, 2015, http://policy.defense.gov/Portals/ll/Documents/gsa/cwmd/20150323%2020
1 5 % 20DoD % 20Annual % 20FON % 20Report.pdf.

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July 2016] AVOIDING THE FALSE CHINA-U.S. NARRATIVE 143
lamation work, the Department of Defense has every reason to add a FON operation
to 2016 calendar to assert that any new feature built on a low-tide elevation that lies
beyond the territorial sea of any nearby rock or island (and therefore cannot extend
that feature's territorial sea as Subi Reef arguably could) is legally an artificial island
entitled under international law to no more than a 500-meter, or 1,640-foot, safety
zone. A U.S. Navy ship should transit within 12 nautical miles of Mischief Reef and
do so in a way that is clearly inconstant with innocent passage (including by activating
radar, launching boats or helicopters, or stopping for an extended period) because it
was a low-tide elevation prior to China's work and lies more than 12 nautical miles
from any nearby rocks. During the same operation, the U.S. Navy should transit in
the same manner within 12 nautical miles of a few Vietnamese-occupied features and
the Philippine-occupied Second Thomas Shoal in order to show that FON operations
do not unfairly target China, but are intended to assert freedom of navigation every-
where around the world, whether in the waters of allies, partners, or competitors.

Legally China could challenge such passage only by claiming a low-tide elevation
as a rock or island entitled to a territorial sea. That would place Beijing in an absurd
legal position. It is equally likely that Beijing would recognize this absurdity and not
publicly object to such a FON operation. In either case, the operation would offer
clarity on what China considers these reclaimed features to be. More importantly, it
would place more pressure on China to clarify its claims and thereby shrink the size
of the area in dispute to a more manageable space.

• Regarding FON operations and other activities to contest excessive Chinese claims, it is impera-
tive that the United States urge claimant states and other interested parties such as Australia
and Japan to take part independently and jointly. It is also important that Washington try
to convince partner nations to undertake joint activities to contest claims and bolster
other claimants' capacity without the United States. A key component of China's
strategy to deflect criticism over the South China Sea has been the peddling of a
narrative that recent escalations are really about U.S. efforts to contain China. But
the stakes in the South China Sea are high for all countries interested in the preserva-
tion of international law and the maritime commons. Allowing Beijing to sell a narra-
tive that the disputes are a bilateral U.S.-China issue is counterproductive. That
position would be much harder to maintain in the face of joint Australia-Philippines
capacity building efforts, for example, or Japan-Vietnam joint patrols.

• The State Department, through its Limits in the Seas series, should provide legal analyses of the
claims of ^Malaysia as it has already done for those of China, Indonesia, the Philippines, and
Vietnam. Kuala Lumpur has failed to give an accounting of its territorial baselines,
and its claim is often still depicted based on a map of its continental shelf issued in
1979, which predated and is not compliant with UNCLOS. Its 2009 submission to
the Commission on the Limits of the Continental Shelf invalidated that map, but
only presented an incomplete picture of its current claims. As a matter of fairness,
and as a relatively easy step, the State Department should issue a position paper on
Malaysia's maritime claims and strongly urge Kuala Lumpur to clarify them in accor-
dance with international law. The State Department should also release a paper on
the claims of Brunei, which, while apparently not excessive, have not been publicly
declared, as UNCLOS requires.

• The United States should offer technical, legal, and diplomatic support for an effort by Southeast
Asian claimants to reach an agreement on what is and is not disputed in the South China Sea.
Given the refusal of China to clarify the scope of the nine-dash line in order to shrink
the size of the disputed area in the South China Sea to something more manageable,
Southeast Asian claimants should begin the process themselves to place pressure on
China, seize the legal and moral high ground, and present a united front. Brunei,

26 U.S. Department of State, "Limits in the Seas," accessed July 4, 2015, http://www.state
.gov/e/oes/ocns/opa/cl 6065.htm.
27 Peta menunjukkan sempadan perairan dan pelantar benua Malaysia [Map showing the terri-
torial waters and continental shelf of Malaysia] (Kuala Lumpur: Directorate of National Map-
ping Malaysia, 1979).
28 Malaysia and Vietnam, Joint Submission to the Commission on the Limits of the Conti-
nental Shelf.

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144 AMERICAN JOURNAL OF CHINESE STUDIES [Vol. 23:135
Malaysia, the Philippines, and Vietnam, and perhaps Indonesia should agree to per-
form their own survey of disputed features; agree on which, if any, are legally islands;
and then issue an agreed-upon area of overlapping maritime entitlements from those
zones. U.S. diplomatic support would be valuable in helping the claimants reach a
consensus on such an effort, and U.S. legal and technical capabilities, as evidenced
by the work of the State Department's Limits in the Seas series, could be immensely
helpful. The overarching purpose of this exercise would be to recognize that the
disputes over land features in the South China Sea are irreconcilable in the medium
term, but that a system of resource sharing and joint activities in disputed waters
could provide a long-term means of managing the maritime disputes.

• The U.S. government needs to build as much backing as possible among both regional and
outside nations in support of any future ruling from the arbitration tribunal hearing the Philip-
pines' case against China. Authorities in Beijing are almost certain to ignore a ruling
from the tribunal at the Permanent Court of Arbitration at The Hague, but it is
possible that China could choose to clarify the nine-dash line in the future, in line
with a limited ruling, in order to avoid international opprobrium and being seen as
an irresponsible member of the global community. Beijing will not admit that it is
clarifying its claim because a court ordered it to do so, but the effect would be the
same. This will require that any ruling from the court be narrow enough to allow
China to clarify the nine-dash line while still maintaining much or most of its claim to
maritime space in the South China Sea. But it will also rely on China's leaders feeling
pressure from a wide array of international players, not only in Asia and the United
States but also in Europe and elsewhere.

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