Sea disputes are vexing phenomena for sailors and statesmen who subscribe to a worldview based on political realism. On one hand, such disputes are readily understood by the Bismarcks of the world in that the contenders’ national interests include the exploitation of fish, oil, and gas resources. Additionally, it is well known that states such as China desire larger swaths of sovereign waters to serve the dual purpose of extended security zones for defense in depth and to encourage a surge of nationalism that strengthens the power and constituency of its Communist Party. However, rather than being responsive to shifts in balance of power, sea disputes are more sensitive to a balance of legitimacy whereby contending states employ combinations of “lawfare,” “alliancefare,” and “tradefare” to achieve their ultimate objective—regional and international recognition of their claims. (Those three terms refer to the manipulation of law, alliances, and trade associations—such as fisheries—to gain asymmetric advantages in conflicts. Performing similarly to proxies and militia, trade associations are incentivized by states to engage in low-level and nonlethal—but often violent—skirmishes with other contending states.)
In East Asia, the stakes in the sea disputes are high. And yet, the conventional wisdom across the board is that intervention to keep the peace in the region is not required, or may even be impossible. Those in the realpolitik camp believe that military balancing and economic pressure will motivate the contenders to seek dispute-resolution mechanisms. Similarly, many observers and practitioners of ocean politics are too comfortable with the disputes in the South China Sea, East China Sea, and Sea of Japan, viewing them as business as usual and without a catalyst that requires collective, external action. Both of these positions are flawed, and some of the opinions regarding a multilateral mission in East Asia, particularly under United Nations authorization, should be reconsidered.
Norms will save the day.
Only for a while. One argument against intervention is that the East Asia sea disputes have achieved a form of stasis where the contending states are content in jostling with each other through low-level skirmishes involving fishermen, coast guards, and maritime-patrol units while the real fight is waged “peacefully” by technocrats in the legal backwaters of the International Court of Justice or in dialogue at the ASEAN Regional Forum (ARF). However, if the historical record of modern sea disputes is considered, the outcomes usually aren’t so rosy. For example, the fishery disputes between Britain and Iceland in the 1950s and ’70s (the “Cod Wars”) carried on for a time in a similar fashion to the Asian disputes, but when the balance of legitimacy tipped in favor of Iceland’s claims as states began to line up in favor of the U.N. Convention on the Law of the Sea (UNCLOS), the conflict escalated from harassment, ship rammings, and net cutting to more lenient rules of engagement, increased violence on the water, and a threat by Iceland to leave the North Atlantic Treaty Organization and sever diplomatic ties with Britain—actions that were not mere trifles in international affairs.
It is conceivable that a similar outcome is possible for the East Asia disputes if the balance of legitimacy begins to clearly favor one contender over the others, particularly if a weaker state is favored by international law. In July, the Permanent Court of Arbitration of the Hague may have moved closer to upsetting the balance of legitimacy in the South China Sea dispute when it heard the arbitration case between the Republic of the Philippines and the People’s Republic of China. The Arbitral Tribunal was still in deliberation at press time, but if the Court determines that it has jurisdiction in the case and that the Philippines claim is well founded in fact and law, it would be a significant milestone down a path leading toward legitimacy of the Philippines’ claim over that of China, thereby placing the stronger contender (China) in a position in which it must either comply or resort to escalation and aggression as was experienced in the Cod Wars. The normative system that has developed in the East Asia sea disputes will be highly sensitive to the progress and ultimate ruling of the Philippines v. China case at the Hague. The status quo is unlikely to last.
The East Asia sea disbutes have room to grow.
Barely. When one considers the fact that modern sea disputes in the region reach back four decades to the bloody battle between China and South Vietnam in 1974 over the Paracel Islands, a clearer understanding of the life cycle of these disputes is achievable. To date, contenders in the region have resorted to warning shots, arrests, rammings, harassment, water cannon, fire control painting, occupation of land features, spoofing, painting over vessel names and nomenclature, manipulating the rules of navigation, boardings and opposition to boardings, jamming of radar and radio, cable cutting, buzzing by helicopters, falsified “research” missions to plant scientists on land features, and area-denial obstructions. How much more room is there for escalation or new innovative ways to frustrate other contenders? Not much. Perhaps the introduction of yet-to-be-used nonlethal technologies could enable a contending state to raise the cost for its adversaries, but it is probably safe to say that the East Asia disputes are at the end of their life cycle and are likely to either evolve positively into dispute resolution or escalate negatively into actual armed, deadly conflict. One indication that the disputes are nearing their end (or rather, their peak) is that China began a massive reorganization of its maritime-enforcement bodies under the singular command of the State Oceanic Administration in 2013 to include marine surveillance, border control, fisheries law enforcement, and administration of customs. This reorganization and others like it in the region demonstrate an understanding that the manifestation of the disputes on the water will likely grow quickly to their apex in the very near future.
Regional institutions are a sufficient path to peaceful resolution.
Hopefully, but watch them closely. As the contending states continue their buildup and consolidation of military and civilian maritime power while the disputes play out according to accepted norms, there is hope that governments will seek resolution through regional-dialogue mechanisms such as the Association of Southeast Asian Nations Plus Three, which includes China, Japan, and South Korea); the ARF, which is designed to promote preventive diplomacy, and the East Asia Summit. However, the topic of sea disputes has been nearly as taboo as the Taiwan Straits issue in these fora due to the refusal of China and other states (notably Cambodia) to engage in multilateral discussions or agreements that involve the sea-dispute issue.
The next year or two should reveal whether or not regional arrangements will prevail. Particular attention should be given to whether or not China will sign a binding Code of Conduct in the South China Sea (the COC) rather than settling with the nonbinding political statement of trust and confidence measures knows as the Declaration on Conduct of Parties in the South China Seas (the DOC) that was signed by the contending states in 2002. China continues to balk at the idea of a Code of Conduct, most recently rejecting the plan in August 2014. If the COC stalls indefinitely, then no legitimate regional mechanism for dispute resolution will be in place, and no regional peacekeeping force is even conceivable given the fact that most of the countries in the region are actually in contention.
The other alternative, an ad hoc coalition conducting peace-support operations, would also likely be unacceptable to the contenders, particularly since many countries willing to participate in an ad hoc arrangement are just too incendiary from a political standpoint. Nations such as the United States involved in an ad hoc peacekeeping mission would be detrimental to the cause due to webs of alliances. If regional and ad hoc peacekeeping arrangements are unachievable, then a multilateral maritime force mandated and perhaps even led by the United Nations that excludes politically sensitive states from contributing may be the best and only option for regional stability.
Legal barriers to U.N. intervention are insurmountable.
Not true. One barrier to intervention is the simple fact that each contending state has pledged that it prefers peaceful resolution to open, armed conflict over the territorial sea claims. Add to this the fact that state-on-state armed conflict hasn’t yet broken out and the legal case for U.N. intervention appears on the surface to be weak at best. However, Articles 1, 39, 41, and 42 of the U.N. Charter provide all the justification needed for the member states to take “collective measures for the prevention and removal of threats to the peace.” Some member states may argue that an “Article 42 force” authorized to use military force in the conduct of peace enforcement operations would be overkill in the East Asia disputes, but a precedent has been set following then-U.N. Secretary General Boutros Boutros-Ghali’s 1992 proposal titled “An Agenda for Peace,” resulting in broad international acceptance of an integrated approach to maintaining peace that encompasses more limited forms of peace-support operations. These include preventive diplomacy, peacemaking, and post-conflict peacebuilding that fall within the spectrum between Article 41’s non-force means and Article 42’s peace enforcement. A U.N. Maritime Task Force would be in line within this precedent if it is designed for preventive diplomacy, observation, and so-called “second-generation” peacekeeping whereby consent may not be available from all parties.
Perhaps the greatest barrier to multilateral peace-support operations in East Asia by the United Nations or under its authorization is China’s veto on the Security Council. This is a valid and potent obstacle regarding the sea disputes, since China would likely view collective action as an affront to its own interests and claims to “indisputable sovereignty” in the South and East China Seas. However, the China veto may be outmaneuvered. There may be enough incentive for China to approve of collective action, or at least abstain, if it is clear that Japan will be held equally accountable in the disputes over the Senkaku (Diaoyu) Islands. Why would the Senkakus matter in this regard more than the other island groups? The reason is that these islands are within the Exclusive Economic Zone of China, within 200 miles from its mainland, and therefore the balance of legitimacy somewhat favors China even though some countries (most notably the United States) have acknowledged Japan’s “administration” of the islands. An additional maneuver around a Chinese veto could be made under the precedent set by the General Assembly “Uniting for Peace” as it did in 1950 with Resolution 377(A). In that resolution, the assembly circumvented the permanent members of the Security Council by a two-thirds vote based on Article 1 authority under the Charter, thereby awarding “final responsibility” for maintaining peace to the General Assembly rather than the Security Council.
A U.N. Maritime Task Force would be inefficient.
Twenty years ago—yes, but now—no. If multilateral operations on land are slow, unsafe, and communication nightmares, then multilateral maritime operations are much more so due to specialized training requirements for ship types and missions, long transit times to operating areas, and sophisticated equipment that prompts nations to balk at sharing the data such sensitive systems collect. So goes the misperception. Although these multilateral challenges are palpable in the maritime domain, experience—that most brutal of teachers—has proven in the recent past that multilateral maritime operations are not only feasible, but effective. Every modern navy in the world has been involved in some form of combined, coalition, or U.N.-mandated maritime mission in the past two decades. Opportunities such as the pirate-fighting Combined Task Force 151 in the Gulf of Aden are seized upon by many countries interested in putting their navies to work, in part to justify funding and also to participate in global security initiatives. Several countries are involved in ongoing maritime counter-drug operations in the Caribbean. Even Operations Iraqi Freedom and Enduring Freedom provided tools and experience to multiple navies involved in those campaigns.
Today, multilateral naval operations are the norm, not the exception. Perhaps the most cogent example is the United Nations’ first and only maritime peacekeeping operation—the U.N. Interim Force in Lebanon (UNIFIL) Maritime Task Force (MTF)—which began in 2006 and was designed to prompt Israel to lift its naval blockade and prevent unauthorized entry of arms or related material into Lebanon. Some observers believe the MTF’s success is due to its ability to maintain a high degree of neutrality and, by extension, a credibility respected by all parties. Regardless, the 15 countries that have supported the MTF to date have indeed been successful and the task force is a prime example of the diffusion of multilateral interoperability that is now prevalent in modern navies. It is therefore less challenging to export this shared maritime experience to East Asia than many critics think.
As for U.N. leadership of an East Asia MTF, it would need to mirror the lead-nation framework of UNIFIL to be successful if it came to fruition in the short term. However, longer-term reforms in the United Nations may prove beneficial for collective maritime action and the East Asia disputes may be a prime opportunity to make reforms a reality. One idea that might work for an East Asia MTF led by the United Nations might be based on an “On-Call Plus” concept, whereby states volunteer to submit naval forces for use by the Secretary General and may then be augmented by ad hoc contributors on a case-by-case basis. The idea of a standing force is long since dead, but the possibility of a standing staff to lead an “On-Call Plus” force in strategic planning, liaison with contributing countries, and provide operational direction as an on-site task force has merit in general, but particularly in the context of the East Asia sea disputes where a regional force is impossible and an ad hoc coalition would likely be too much of a political risk for contributing countries. A U.N. mandate in the East Asia sea disputes would be absolutely necessary for any peacekeeping mission, but U.N. leadership may prove to make such a mission even more effective.
The spatial challenge is too great.
Not as great as one would think. The UNIFIL MTF operating area is 5,000 square miles. The South China Sea alone is roughly 1.4 million square miles. With a scale that large, how could the United Nations lead or authorize a peacekeeping force that could have any positive effect on the situation? The simple answer is that the conflict usually becomes manifest in much smaller areas surrounding the disputed land features such as the Senkaku Island group, the Scarborough Shoal, locations where fishermen frequent in the Spratly Island group, and the transit routes used by boats servicing the oil industry in the Paracel Island group. One of the key tasks of an MTF in East Asia would be to identify and anticipate the location of these hot spots as they shift over time and assign its limited resources to those areas accordingly. Another way an East Asia MTF could shrink its operating space is through networked surveillance systems such as aerostats tethered to islands, unmanned aerial vehicles, and unmanned surface vehicles that could extend the observable coverage of one or a few ships tactically placed around a hot spot.
The cost would be too high.
Not when considering the worst case. Undoubtedly the cost of a large multilateral naval force would far exceed that of any land-based peacekeeping mission. The annual cost for the UNIFIL MTF hovers around U.S. $524 million gross. An East Asia MTF would certainly exceed that regardless of the measures to disperse and apportion resources to hot spots. It would be a large chunk of change, but the opportunity cost of not paying for an East Asia MTF is the unrealized, massive costs of the conflict escalating from sea disputes to actual armed conflict. Some maritime-security experts in the commercial shipping industry estimate that U.S. $5.3 trillion of global trade passes by ship through the South China Sea alone on an annual basis. They fear that if actual war breaks out companies will be loath to ship through affected seas regardless of assurances made by warring parties. The cost of rerouting ships and insurance would elevate operating costs and worldwide prices with devastating consequences to an already shocked global economy. Conversely, if a U.N. East Asia MTF were (in time) successful in motivating the contenders to seek peaceful resolution and accept the delimitation of territory in an international forum, then the peace dividend realized by improved relations and strengthened economic linkages may go far toward eventually paying for the investment outright.
Let them duke it out in traditional sea-dispute fashion before intervening.
OK, but don’t wait too long. It isn’t a question of whether or not a U.N. Maritime Task Force assigned a mission of preventive diplomacy, peacekeeping, or observation would be worth it, but rather it is a question of when to act. If a handful of countries make an attempt to cobble a force together too soon, they may risk legitimacy when regional-dialogue mechanisms such as ASEAN Plus Three and the Code of Conduct still have a fighting chance to save the day in the South China Sea region (there is less hope for the East China Sea disputes since there are no dispute-resolution mechanisms, in draft or realized). Timing is everything, particularly when the disputes manifest on the water and it takes more time to put together a rotating and effective MTF than it does for a land force. Sure, let them duke it out now—in the confines of the fisheries, in the legal backwaters of trade associations, away from the leering moral stare of international law, bereft of states committed to back up that law with their presence or real force.
When the choices for action following failure of regional-dispute mechanisms are limited to unilateral action (which would have little impact on aggressive states enlarging their naval power), ad hoc coalitions (which are politically unacceptable to the contending parties), and a regional force (impossible since all the actors in the region are involved), the United Nations can’t wait too long. There isn’t much escalatory space left between the current disputes and the fine line that separates them from actual war. Now may be a prime time for a sea change in global governance. The United Nations should view the East Asia sea disputes as an opportunity for reform to create and possibly lead its second maritime peacekeeping force, regardless of the skepticism conventional wisdom has to offer.
Commander Thompson is a naval strategist most recently serving with the U.S. Navy’s Strategy and Policy Division (OPNAV N51). He is currently the commanding officer of Explosive Ordnance Disposal Mobile Unit One, based in San Diego.