Acquiescing

to Chinas Assertiveness in the South China Sea:

U.S. and Australian Policies of Not Taking Sides

Carlyle Thayer

US Secretary of State Hillary Clinton,17th ASEAN Regional Forum Retreat, Hanoi, July 23, 2010

Presentation to International Conference on the South China Sea

Jointly sponsored by VOICE, US Pinoys for Good Governance, Pinoy Patriots
United Movement, Democratic Assembly for Vietnam, National Congress of
Vietnamese Americans and Institute for Maritime Affairs & Law of the Sea,
University of the Philippines, Teehankee Rule of Law Center, Ateneo Law School,
Manila, The Philippines, March 27, 2015

Acquiescing to Chinas Assertiveness in the South China Sea:

U.S. and Australian Policies of Not Taking Sides
Carlyle A. Thayer*

Introduction
Since 1979 the United States has conducted a Freedom of Navigation program designed
to challenge coastal states that adopt practices at variance with customary international
law with respect to their maritime zones. Specifically, the US challenges the right of
coastal states to regulate military activity in their Exclusive Economic Zones (EEZs) by
deliberately sending military ships into these areas. The US argues that these military
activities are not proscribed by the United Nations Conventions on the Law or the Sea
(UNCLOS).
According to a policy brief issued by the U.S. Department of State:
U.S. policy since 1983 provides that the United States will exercise and assert its
navigation and over flight rights and freedoms on a worldwide basis in a manner that
is consistent with the balance of interests reflected in the Law of the Sea (LOS)
Convention. The United States will not, however, acquiesce in unilateral acts of other
states designed to restrict the rights and freedoms of the international community in
navigation and over flight and other related high seas uses The FON Program
operates on a triple track, involving not only diplomatic representations and
operational assertions by U.S. military units, but also bilateral and multilateral
consultations with other governments in an effort to promote maritime stability and
consistency with international law, stressing the need for and obligation of all States
to adhere to the customary international law rules and practices reflected in the LOS
Convention.1
In 1992 and again in 1995 the Association of South East Asian Nations (ASEAN) issued its
first two declarations on the South China Sea. The first was in response to growing
tensions between China and Vietnam (not yet a member of ASEAN) over oil exploration
in the South China Sea. The second ASEAN statement was issued in response to Chinas
occupation of Mischief Reef in waters claimed by the Philippines. This paper traces
United States policy on the South China Sea from the early 1990s to the present.
*

Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy,
Canberra. Email: c.thayer@adfa.edu.au. Revised April 1, 2015.
1

U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs,
Maritime Security and Navigation, http://www.state.gov/e/oes/ocns/opa/maritimesecurity/. Accessed
March 24, 2015.

3
In 1992 the U.S. was in the process of vacating its military bases in the Philippines after
its leases ran out. The prime concern of the George H. W. Bush Administration (1989-
1993) was to ensure safety of the sea-lanes of communication (SLOCs) for commercial
and military traffic. The U.S. counseled all parties to refrain from using force. The
Administrations of President Bill Clinton (1993-2001) and President George W. Bush
Administration (2001-09) followed the same general policy line.
United States policy on the South China Sea underwent a sea change under the
Administration of President Barrack Obama (January 2009-present). In July 2010
Secretary of State Hillary Clinton declared at a meeting of the ASEAN Regional Forum
(ARF) that the U.S. took no side on the issue of territorial and sovereignty claims in the
South China Sea. But the United States had a national interest in the South China Sea
including freedom of navigation, over flight and unimpeded lawful commerce.
Secretary Clinton and other senior Administration officials, such as the Secretary of
Defense, argued that all parties should refrain from the threat or use of force, settle
disputes on the basis of international law including the United Nations Convention on
the Law of the Sea. U.S. official argued that claims to waters in the South China Sea
should be made from land features. This has remained U.S. declaratory policy up to the
present.
Within this framework, U.S. policy has also responded to developments in the South
China Sea by raising these issues at ASEAN-centred multilateral forums such as the ARF,
ASEAN Defence Ministers Meeting Plus (ADMM Plus) and the East Asia Summit. The
U.S. strongly supports ASEAN and its efforts to get China to fully implement the 2002
Declaration on Conduct of Parties in the South China Sea (DOC) and to move quickly to
adopt a Code of Conduct in the South China Sea.
The paper concludes with a brief look at Australias South China Sea policy.

Chinese Actions Threatening U.S. Commercial Activities

In 2007-09 China applied behind-the-scenes diplomatic pressure on a number of
American oil companies to stop their commercial activities in Vietnam or face the
potential consequences in their business dealings with China. This form of Chinese
intimidation did not represent a direct threat to the safety of navigation. However it was
an implied threat to the freedom of navigation of US commercial survey and exploration
vessels operating in contested waters. This section will review briefly the response by
the Obama Administration before turning to actual Chinese interference in the safety of
navigation of commercial vessels operating in the declared EEZs of the Philippines and
Vietnam that lie within waters claimed in Chinas u-shaped map.
China also put foreign oil companies, including American companies, under pressure to
cease their operations in Vietnam.
In July 2009, the Obama Administration made clear its policies towards threats to US
commercial interests in the South China Sea. Deputy Assistant Secretary of State Scot
Marciel gave testimony to the Subcommittee on East Asia and Pacific Affairs of the

4
Senate Committee on Foreign Relations. He asserted that the United States has a vital
interest in maintaining stability, freedom of navigation, and the right to lawful
commercial activity in East Asias waterways (italics added). And more pointedly, after
reviewing recent cases of Chinese intimidation against American oil and gas companies
working with Vietnamese partners, Marciel stated, We object to any effort to
intimidate U.S. companies.2

Chinese Actions Against Freedom of Navigation and Over Flight

Perhaps the most notable recent incident related to foreign military activities in a states
EEZ took place in April 2001 when the Chinese pilot of a J-811 fighter aircraft collided
with a US Navy EP-3 signals intelligence aircraft in international airspace above Chinas
EEZ off Hainan island. The Chinese plane crashed killing its pilot and the EP-3 was forced
to make an emergency landing on Hainan. This incident occurred because the Chinese
pilot maneuvered his plane in a dangerous manner in disregard for the safety of the EP-
3.
According to Mark Valencia, between 2002 and 2009 China recorded at least 200
incidents involving US vessels entering its EEZ to collect intelligence without permission.
In the vast majority of cases China avoided direct confrontations.3 But in the four cases
below China reacted in an assertive if not aggressive manner, endangering the safety of
navigation (and thus freedom of navigation) of the US ships involved.
Case 1. Since 2002, Chinese ships have repeatedly harassed the USNS Bowditch, an
oceanographic survey ship, as it operated in Chinas EEZ in the Yellow, East China and
South China Seas.4
Case 2. On March 4, 2009, the USNS Victorious, an ocean surveillance vessel, was
harassed in the Yellow Sea not only by a Chinese Bureau of Fisheries vessel but also by a
Chinese Navy maritime patrol aircraft. The fishery vessel illuminated the bridge of the
USNS Victorious with a high-intensity light and in the evening crossed the bow of the
USNS Victorious at close distance without warning. The maritime aircraft made repeated
low-altitude passes over the USNS Victorious.
Case 3. In February-March 2009, the United States dispatched the USNS Impeccable to
conduct military scientific research related to Chinese submarine activity operating from
Sanya Naval Base.5 The USNS Impeccable was reportedly operating 75 miles south of
2

Testimony of Deputy Assistant Secretary Scot Marciel, Bureau of East Asian and Pacific Affairs, U.S.
Department of State before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign
Relations, United States Senate, July 15, 2009.
3

Mark Valencia, The Impeccable Incident: Truth and Consequences, China Security, 5(2), Spring 2009,
24.
4

Mark Valencia, The Impeccable Incident: Truth and Consequences, China Security, 5(2), Spring 2009,
23.
5

For the most detailed and comprehensive account consult: Jonathan G. Odom, The True Lies of the
Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation

5
Hainan when, on March 5, a Peoples Liberation Army Navy (PLAN) frigate crossed its
bow at a range of approximately 100 yards without first making radio contact. Two
hours later a Chinese Y-12 aircraft repeatedly flew over the USNS Impeccable at low
altitude. Then the PLAN frigate crossed Impeccable's bow again, at a range of
approximately 400500 yards.
On March 7, a PLAN intelligence collection ship contacted the Impeccable over bridge-
to-bridge radio and informed its captain that his ships operations were illegal and the
Impeccable should leave the area or suffer the consequences.6 On the following day,
five Chinese ships shadowed the Impeccable, including a Bureau of Maritime Fisheries
Patrol boat, a State Oceanographic Administration vessel, a Chinese Navy ocean
surveillance ship, and two small Chinese-flagged trawlers.
The trawlers closed on the Impeccable, coming within fifteen meters waving Chinese
flags, and ordering the Impeccable to leave the area. When one trawler moved closer to
the Impeccable it was sprayed with water from its fire hose. The Impeccable then
radioed the Chinese vessels and requested safe passage out of the area. The two
Chinese trawlers then attempted to obstruct the Impeccable by stopping abruptly in
front of it and dropping debris in the water. The Impeccable was forced to execute an
emergency full stop in order to avoid a collision. As the Impeccable attempted to depart
the crew of one of the Chinese trawlers used a grappling hook to try to snag the
Impeccable's towed sonar array (SURTASS).
The US Defense Department responded to the USNS Impeccable incident by dispatching
a guided missile destroyer to accompany the ship on its next voyage.7 Tensions over the
USNS Impeccable incident abated on March 20 when China called an end to its military
stand off.
Case 4. The standoff between the USNS Impeccable and PLAN vessels was followed by
the collision of a PLAN submarine with the sonar array towed by the destroyer USS John
S. McCain on June 11, 2009. The USS McCain was one of three U.S. warships
(Outside of China) Should be Concerned, Michigan State Journal of International Law, 18(3), 2010, 1-42.
For a range of views see: Eric A. McVadon, The Reckless and the Resolute: Confrontation in the South
China Sea, China Security, 5(2), Spring 2009,1-15; Ji Guoxing, The Legality of the Impeccable Incident,
China Security, 5(2), Spring 2009, 16-21; Mark Valencia, The Impeccable Incident: Truth and
Consequences, China Security, 5(2), Spring 2009, 22-28; Mark J. Valencia, Not an Impeccable
Argument, Nautilus Policy Forum Online, April 1, 2009; and Peter Dutton and John Garofano, China
Undermines Maritime Laws, Far Eastern Economic Review, April 2009, 44-47.
6

For a discussion of the legal positions held by the United States and China see: Sam Bateman, Clashes at
Sea: When Chinese vessels harass US Ships, RSIS Commentaries, March 13, 2009; Patrick J. Neher, Raul A.
Pedrozo and J. Ashley Roach, In Defense of High Seas Freedoms, RSIS Commentaries, March 24, 2009;
and B. A. Hamzah, EEZs: US Must Unclench its Fist First, RSIS Commentaries, April 9, 2009. The RSIS
Commentaries are produced by the S. Rajaratnam School of International Studies, Nanyang Technological
University in Singapore.
7

Mark Valencia, The Impeccable Incident: Truth and Consequences, China Security, 5(2), Spring 2009,
25.

6
participating in combined exercises with six Southeast Asian navies in waters off the
Philippines.
Also in July 2009, Deputy Assistant Secretary of Defense Robert Scher gave testimony to
the Subcommittee on East Asia and Pacific Affairs of the Senate Committee on Foreign
Relations regarding the Administrations policy with respect to harassment of U.S. naval
vessels (discussed in the section below). Scher outlined a four-point strategy:
In support of our strategic goals, the [Defense] Department has embarked on a
multi-pronged strategy that includes; 1) clearly demonstrating, through word
and deed, that U.S. forces will remain present and postured as the preeminent
military force in the region; 2) deliberate and calibrated assertions of our
freedom of navigation rights by U.S. Navy vessels; 3) building stronger security
relationships with partners in the region, at both the policy level through
strategic dialogues and at the operational level by building partner capacity,
especially in the maritime security area, and 4) strengthening the military-
diplomatic mechanisms we have with China to improve communications and
reduce the risk of miscalculation.8
As a result of US diplomatic interchanges with China both of the above concerns were
satisfactorily addressed. In August 2010, Assistant Secretary of Defense Robert Scher,
acknowledged, I am not aware of any recent examples of Chinese intimidation of global
oil and gas companies operating in the South China Sea.9 Also, Scher did not anticipate
another USNS Impeccable-type incident. Both navies are very responsible entities and I
don't foresee any kind of clashes, he stated.
However, three years later that was another incident of Chinese harassment of U.S.
naval vessels operating on the high seas. On November 26, 2013, the Chinese aircraft
carrier Liaoning left its homeport of Qindao, Shandong province for its first deployment
to the South China Sea. Two destroyers, the Shenyang and Shijiazhuang, and two missile
frigates, Yantai and Weifang, accompanied the Liaoning. The Chinese navy website
reported that the carrier group would carry out scientific research, tests and military
drills. The Liaonings deployment was closely monitored by the USS Cowpens (CG-63), a
Ticonderoga-class guided missile cruiser in international waters.
On December 5, a Peoples Liberation Army Navy (PLAN) ship made radio contact with
the Cowpens and asked it to leave the area. The USS Cowpens replied that was in
international waters and declined to change course. The Cowpens was then shouldered
by a PLAN Amphibious Dock Ship that suddenly crossed its bow at a distance of less than
500 meters and stopped in the water. The USS Cowpens was forced to take evasive

Testimony of Deputy Assistant Secretary of Defense Robert Scher, Asian and Pacific Security Affairs,
Office of the Secretary of Defense before the Subcommittee on East Asia and Pacific Affairs, Senate
Committee on Foreign Relations, United States Senate, July 15, 2009.
9

Daniel Ten Kate, U.S. Sees No Recent China Pressure on Global Oil Companies in South Sea,
Bloomberg News, August 17, 2010.

7
action to avoid a collision. The two ships made bridge-to-bridge contact to ensure safety
of navigation. There were no further incidents.
In March, April and May of 2014 China conducted a number of interceptions of U.S.
surveillance aircraft in international air space over the East China Sea and South China
Sea. On August 19 a particularly dangerous incident occurred when a Chinese J-11
challenged a U.S. Navy P-8 Poseidon aircraft approximately 215 km east of Hainan Island
in international airspace.10
The J-11 flew alongside the Poseidon at a distance of six to nine metres from the
Poseidons wing tip. It flew over the Poseidon and then flew at a ninety-degree angle
passing in front of the plane. This was a maneuver to show the Chinese jet's missiles to
intimidate the U.S. aircraft. It was an extremely dangerous action because the Chinese
pilot was unsighted. Finally, the Chinese jet did a barrel roll over the Poseidon coming
within 14 metres of the aircraft. The White House described the incidengt a "deeply
concerning provocation."

U.S. Asserts It Has a National Interest in the South China Sea

Shangri-La Dialogue. In early 2010, Jeffrey Bader, Director for Asia on the National
Security Council, and Assistant Secretary of State Kurt Campbell convened an
interagency group to review U.S. policy towards the South China Sea. Up to then U.S.
policy had been limited to not taking sides on territorial claims. The interagency group
reviewed intelligence that Chinese naval deployments to the South China Sea had
increased markedly since 2000, along with a rise in incidents between China and
claimant states and Chinese intimidation of companies seeking contracts with Vietnam
to explore for oil and gas. Interagency discussions resulted in a new, more
comprehensive articulation of U.S. policy.
Assistant Secretary of State Kurt Campbell and his staff drafted a statement of U.S.
policy on the South China Sea for delivery by the Secretary of State at the seventeenth
meeting of the ASEAN Regional Forum to be held in Hanoi in July 2010. Bader and
Campbell contacted other delegations scheduled to attend the ARF meeting and urged
them to speak out about international rights in the South China Sea.11
The first public articulation of the new U.S. policy was made by Secretary of Defense
Robert Gates at the ninth Shangri-La Dialogue held in Singapore from June 4-, 2010.6,
Gates called for open, transparent, and equal access to the global common, including
the maritime commons, for security, for trade and commerce, and free passage. He
then pointedly directed his remarks to the South China Sea:

10

Carlyle A. Thayer, China Recklessly Endangers US P-8 Poseidon Aircraft, Thayer Consultancy
Background Brief, August 23, 2014.
11

Jeffrey Bader, Obama and Chinas Rise: An Insider's Account of America's Asia Strategy (Washington,
D.C.: Brookings Institution Press, 2012), 104-105.

8
In this respect, the South China Sea is an area of growing concern. This sea is not
only vital to those directly bordering it, but to all nations with economic and security
interests in Asia. Our policy is clear: it is essential that stability, freedom of
navigation, and free and unhindered economic development be maintained. We do
not take sides on any competing sovereignty claims, but we do oppose the use of
force and actions that hinder freedom of navigation. We object to any effort to
intimidate US corporations or those of any nation engaged in legitimate economic
activity. All parties must work together to resolve differences through peaceful,
multilateral efforts consistent with customary international law. The 2002
Declaration of Conduct [sic] was an important step in this direction and we hope
that concrete implementation of this agreement will continue.12
ASEAN Regional Forum. Prior to the 17th ARF ministerial meeting in July 2010, several
ASEAN members encouraged the United States to make a statement on the South China
Sea.13 The US responded affirmatively and privately advised selected members of the
ARF of the position that Secretary of State Hillary Clinton would adopt and lobbied them
in advance to make supporting statements.14
The discussions at the 17th ARF were not public. Secretary Clinton, however, spoke to
reporters immediately after the ministerial meeting. She stated at a press conference:
The United States, like every other nation, has a national interest in freedom of
navigation, open access to Asias maritime commons, and respect for international
law in the South China Sea. We share these interests with not only ASEAN members
and ASEAN Regional Forum participants but with other maritime nations and the
broader international community.
The United States supports a collaborative, diplomatic process by all claimants for
resolving the various territorial disputes without coercion. We oppose the use or
threat of force by any claimant. While the United States does not take sides on the
competing territorial disputes over land features in the South China Sea, we believe
claimants should pursue their territorial claim and the company [sic] and rights to
maritime space in accordance with the UN convention on the law of the sea.
Consistent with customary international law, legitimate claims to maritime space in
the South China Sea should be derived solely from legitimate claims to land features.
The U.S. supports the 2002 ASEAN-China declaration on conduct of parties in the
South China Sea. We encourage the parties to reach agreement on a full code of
conduct. The U.S. is prepared to facilitate initiatives and confidence building
measures consistent with the declaration. Because it is in the interest of all claimants
12

Dr. Robert M. Gates. Secretary of Defence, United States, Strengthening Security Partnerships in the
th
Asia-Pacific, presentation to the First Plenary Session, the 9 IISS Asian Security Summit, The Shangri-La
Dialogue, Singapore, June 5, 2010. IISS is an acronym for International Institute of Strategic Studies.
13

Jeremy Page, Patrick Barta and Jay Solomon, U.S., Asean to Push Back Against China, The Wall Street
Journal, September 22, 2010.
14

Barry Wain, Asean caught in a tight spot, The Straits Times, September 16, 2010.

9
and the broader international community for unimpeded commerce to proceed
under lawful conditions. Respect for the interests of the international community
and responsible efforts to address these unresolved claims and help create the
conditions for resolution of the disputes and a lowering of regional tensions
(emphasis added}.15
Clinton said that resolving disputes related to the South China Sea was pivotal to
regional stability.
China was aware of US plans to raise the South China Sea issue and approached
individual ASEAN countries and made its objection to internationalizing the issue clear.16
China argued that negotiations on the South China Sea should be settled bilaterally
between China and each claimant. Nonetheless, eleven of the ARFs twenty-seven
members joined the United States in raising maritime security/South China Sea issues:
Brunei, Malaysia, the Philippines, Vietnam, India, Indonesia, Singapore, Australia,
European Union, Japan and South Korea. Cambodia, Laos and Myanmar did not raise
the South China Sea issue, while Thailand was most vocal in urging a non-
confrontational stance towards China.
The Chinese Foreign Minister Yang Jiechi was visibly taken aback and described Clintons
remarks as orchestrated,17 virtually an attack on China and asserted nobody believes
theres anything that is threatening the regions peace and stability.18 Greg Torode
reported that Foreign Minister Yang was shocked and accused his US counterpart of
unleashing an anti-China plot.
According to John Pomfret:
Foreign Minister Yang reacted by leaving the meeting for an hour. When he returned,
he gave a rambling 30-minute response in which he accused the US of plotting
against China on this issue, seemed to poke fun at Vietnams socialist credentials
and apparently threatened Singapore, according to US and ASEAN officials in the
room. China is a big country and other countries are small countries, and that is just
a fact, he said staring directly at Singapores foreign minister, George Yeo,
according to several participants at the meeting.19
15

Hillary Rodman Clinton, Secretary of State, Remarks at Press Availability, National Convention Center,
Hanoi, July 23, 2010. Later Assistant Secretary of State for East Asian and Pacific Affairs Kurt Campbell
offered this clarification: what the South China Sea claimant states want is for the United States to
support a process. Theres not a desire for a facilitator, to be perfectly honest.
16

Barry Wain, Asean caught in a tight spot, The Straits Times, September 16, 2010.

17

Mark Landler, Offering to Aid Talks, U.S. Challenges China on Disputed Islands, The New York Times,
July 23, 2010.
18

Battle of the South China Sea, The Wall Street Journal, July 28, 2010.

19

John Pomfret, U.S. takes a tougher line with China, The Washington Post, July 30, 2010. See the follow
up account by Donald K. Emmerson, Chinas frown diplomacy in Southeast Asia, Asia Times Online,
October 4, 2010.

10
2nd US-ASEAN Leaders Meeting. Prior to the 2nd USASEAN Leaders Meeting in New
York in September 2010, a copy of the draft joint statement drawn up by the United
States, as host, was leaked by the media in Manila. Associated Press (AP) reported that
the U.S. draft statement included the wording that the leaders oppose the use or
threat of force by any claimant attempting to enforce disputed claims in the South China
Sea20 and reaffirmed the importance of freedom of navigation, regional stability,
respect for international law and unimpeded commerce in the South China Sea. Some
ASEAN members supported the draft, while others had reservations.21 However, both
the US and ASEAN were in agreement on supporting a full implementation of the 2002
Declaration of Conduct of Parties in the South China Sea and encouraging the eventual
conclusion of a regional code of conduct for the South Chins Sea.
Three days prior to the 2nd US-ASEAN Leaders Meeting, Chinese foreign ministry
spokesperson Jiang Yu stated
We are concerned about any kind of statement that might be issued by the U.S. and
ASEAN over the South China Sea. Words or acts that play up tensions in the region
and concoct conflicts and provocations in relations between countries in the region
are against the common wish of the countries in the region to seek peace and
development.22
Finally, Jiang concluded, We firmly oppose any country having nothing to do with
the South China Sea issue getting involved in the dispute. This will only complicate
rather than help solve the issue.23
The official Joint Statement dropped references to the use or threat of force and did not
even mention the South China Sea by name. Paragraph eighteen (of twenty-five
paragraphs) declared:
We reaffirmed the importance of regional peace and stability, maritime security,
unimpeded commerce, and freedom of navigation, in accordance with relevant
universally agreed principles of international law, including the United Nations
Convention on the Law of the Sea (UNCLOS) and other international maritime law,
and the peaceful settlement of disputes.24
An official read-out by The White House issued immediately after the summit stated:
20

Teresa Cerojano, Associated Press, Manila, Obama, ASEAN to call for peaceful end to sea spats,
September 19, 2010.
21

Jeremy Page, Patrick Barta and Jay Solomon, U.S., Asean to Push Back Against China, The Wall Street
Journal, September 22, 2010.
22

Quoted in Christopher Bodeen, China Criticizes planned US-ASEAN statement on South China Sea,
Canadian Press, September 21, 2010.
23

Xinhua, China Concerned about Possible U.S.-ASEAN Statement on South China Sea Issue,
September 21, 2010.
24

nd

The White House, Office of the Press Secretary, Joint Statement of the 2 U.S.-ASEAN Leaders
Meeting, September 24, 2010.

11
The President and the leaders also agreed on the importance of peaceful resolution of
disputes, freedom of navigation, regional stability, and respect for international law,
including in the South China Sea.25
Why was the Joint Statement watered down? Several ASEAN states took the view that
now was not the time to antagonize China. They also argued that it was not in ASEANs
interest to be seen as leaning towards the United States in a dispute over the South
China Sea. One source reported a high-ranking ASEAN diplomat as observing, It would
not have been fair to include the issue in a statement from a meeting in which China
was not present. We also did not want to give the impression that we were willing to do
whatever the United States said. By deleting South China Sea, we saved the face of
both China and the United States.26
ASEAN Defence Ministers Meeting Plus. The ASEAN Defence Ministers Meeting Plus
(ADMM Plus) held its inaugural meeting in Hanoi on October 12, 2010. The ADMM Plus
comprised eighteen defence ministers, ten from the ASEAN states and eight dialogue
partners: Australia, China, India, Japan, South Korea, New Zealand, Russian Federation
and the United States.27
ASEAN Defence Ministers reached consensus that issues related to the South China Sea
would not be part of the formal agenda and that no reference to the South China Sea
would be included in the final joint declaration.28 ASEAN defence ministers decided that
the formal agenda would include five defence-related issues: humanitarian assistance
and disaster relief, maritime security, counter-terrorism, peacekeeping operations and
military medicine.29
The ADMM Plus meeting was structured to identify common interests and areas for
practical cooperation in order to avoid becoming, to use the words of Lt. Gen. Nguyen
Chi Vinh, a place for a war of words.30 But no restrictions or pre-conditions were put
on the eight non-ASEAN ministers. When directly asked about this point, Australias

25

The White House, Office of the Press Secretary, Read-out of President Obamas Working Luncheon
with ASEAN Leaders, September 24, 2010.
26

Seas fill with tension over Chinas moves, The Asahi Shimbun, October 2, 2010.

27

The Defence Minister from Russia did not attend; Russia was represented by the Deputy Chief of Staff
(Valery Gerasiov). The US delegation was the largest with thirty-five officials out of fifty delegates in
attendance. China withheld the titles and areas of responsibility of its delegation but analysts who poured
over their names were quick to spot that all were important experts involved in South China Sea affairs.
28

Kazuto Tsukamoto, Yusuke Murayama and Kenji Minemura, At key meet, Beijing tones down stance on
South China Sea, The Asahi Shibun, October 14, 2010.
29

VN set for defence ministers meeting, Viet Nam News, October 8, 2010.

30

Quoted in John Ruwitch, Vietnam defence talks to steer clear of controversy, Reuters, October 8,
2010.

12
Defence Minister Smith replied, as far as Australia is concerned, and Im sure it applies
generally and broadly, there were no preconditions for this.31
Seven participants, including the United States, Japan, South Korea, Australia, Malaysia,
Singapore and Vietnam, raised concerns about territorial disputes in the South China
Sea.32 Secretary Gates began his presentation by arguing, What is now essential is that
these bilateral relationships be supplemented by strong multilateral institutions to
promote regular dialogue and consultation. Gates argued that in order to enhance the
regions common security:
we must establish both shared rules of the road and pursue greater transparency
meaning that as we improve our military capabilities, we must discuss these
developments together. This provides assurance that our capabilities are not directed
against others in the region and that they will be used for common ends.
Gates then enunciated four principles essential to regional peace and stability: free and
open commerce, a just international order that emphasizes rights and responsibilities
and fidelity to the rule of law, open access by all to the global commons (sea, air space
and cyberspace), and resolution of conflict without the use of force.
Secretary Gates then framed US policy towards the South China Sea with these words:
Disagreements over territorial claims and the appropriate use of the maritime
domain appear to be a growing challenge to regional stability and prosperity.
On that note, we are encouraged to see claimant nations in the South China Sea
making initial steps to discuss the development of a full code of conduct, in line with
the 2002 ASEAN Declaration on the Conduct of Parties. We applaud this multilateral
approach and we stand ready to help facilitate such initiatives.
The U.S. position on maritime security remains clear: We have a national interest in
freedom of navigation; in unimpeded economic development and commerce; and in
respect for international law. We also believe that customary international law, as
reflected in the UN Convention on Law of the Sea, provides clear guidance on the
appropriate use of the maritime domain, and rights of access to it. By adhering to
this guidance, we can ensure that all share equal and open access to international
waterways.
The United States has always exercised our rights and supported the rights of others
to transit through, and operate in, international waters. This will not change, nor will
our commitment to engage in activities and exercises together with our allies and
31

Minister for Defence Stephen Smith, MP Interview with Linda Mottram, Radio Australia, Defence
Media Centre, Canberra, October 13, 2010.
32

Kazuto Tsukamoto, Yusuke Murayama and Kenji Minemura, At key meet, Beijing tones down stance on
South China Sea, The Asahi Shibun, October 14, 2010 and Lt. Gen. Nguyen Chi Vinh quoted in Deutsche
Presse-Agentur, Defence meeting in Hanoi calms South China Sea Disputes, October 12, 2010. Some
reports claims eight ministers spoke on the South China Sea.

13
partners.33
Secretary Gates reiterated Secretary Clintons offer to facilitate multilateral discussions
on a code of conduct for the South China Sea.
At the conclusion of the ADMM Plus meeting Vietnam as Chairman issued a statement
that specifically mentioned the South China Sea. Paragraph 12 stated:
Some delegates touched upon traditional security challenges, such as disputes in the
East Sea [sic]. The meeting welcomed efforts by concerned parties to address the
issue by peaceful means in conformity with the spirit of the Declaration on the
Conduct of Parties in the East Sea [sic] (DOC) of 2002 and recognized principles of
international law, including the United Nations Convention on the Law of the Sea
(UNCLOS 1982).34
U.S. Pivot to Asia. On coming to office in 2009, Obama Administration officials quickly
declared, the United States is back in Asia. The United States acceded to the ASEAN
Treaty of Amity and Cooperation, appointed a permanent ambassador to the ASEAN
Secretariat and revived the annual ASEAN-United States leaders meeting. In 2012, the
United States announced that with its withdrawal from Iraq and eventual withdrawal
from Afghanistan, it will pivot to the Asia-Pacific and quarantine defence cuts from the
Pacific Commands Area of Responsibility.
The heightened importance of the Asia-Pacific was underscored in January 2012 with
the release of a new national defense strategy, Sustaining U.S. Global Leadership:
Priorities for 21st Century Defense. This document stated:
U.S. economic and security interests are inextricably linked to developments in the
arc extending from the Western Pacific and East Asia into the Indian Ocean region
and South Asia creating a mix of evolving challenges and opportunities. Accordingly,
while the U.S. military will continue to contribute to security globally, we will of
necessity rebalance toward the Asia-Pacific region. Our relationships with Asian
allies and key partners are critical to the future stability and growth of the region.
We will emphasize our existing alliances, which provide a vital foundation for Asia-
Pacific security. We will expand our networks of cooperation with emerging partners
throughout the Asia-Pacific to ensure collective capability and capacity for securing
common interests [emphasis in original].35

33

US Secretary of Defense Robert Gates Remarks at ASEAN Defense Ministers Meeting Plus 8 in Hanoi
12 October 2010. For assessments see: Greg Torode, US, neighbours push China on sea rights, South
China Morning Post, October 13, 2010 and Merle David Kellerhalls, At ASEAN Meeting, U.S. Defense
Secretary Calls for Greater Trust, Bureau of International Information Programs, U.S. Department of
States, America.govCompList@State.gov, October 12, 2010.
34

Full text of ASEAN official statement: First ADMM+ Chairmans Statement, Vietnam News Agency
website, Hanoi, in English, October 13, 2010.
35

st

Sustaining U.S. Global Leadership: Priorities for 21 Century Defense (January 2012), 2.

14
The United States responded to Chinas naval build-up and development of anti-
access/area denial capabilities by strengthening its posture on Guam, stepping up
weapons and equipment sales to the Philippines, negotiating new arrangements with
Australia giving the U.S. greater access to training facilities near Darwin, and basing
Combat Littoral Ships in Singapore.36
The U.S. has deployed thirty-one of its fifty-three fast attack submarines to the Pacific
and stepped up its anti-submarine warfare program. Eighteen of the U.S. subs are
home-ported in Pearl Harbor; the others are based in Guam.37 Additionally, the United
States has also deployed three Ohio-class nuclear submarines to the AsiaPacific Indian
Ocean region. Each has been modified to carry 154 conventional Tomahawk cruise
missiles. In late June-early July 2010, in a calculated demonstration of naval power, the
USS Florida, USS Michigan, and USS Ohio submarines, simultaneously surfaced in Diego
Garcia (Indian Ocean), Busan (South Korea) and Subic Bay (the Philippines),
respectively.38 The United States has stationed the fifth-generation Raptor aircraft in
Hawaii.
Also, the United States is developing an Air-Sea Battle concept to counter Chinas
development of area-denial/anti-access capabilities. According to the new U.S. defense
strategy the U.S. military:
will invest as required to ensure its ability to operate effectively in anti-access and
area denial (A2/AD) environments. This will include implementing the Joint
Operational Access Concept, sustaining our undersea capabilities, developing a new
stealth bomber, improving missile defenses, and continuing efforts to enhance the
resiliency and effectiveness of critical space-based capabilities [emphasis in
original].39
U.S. Reiterates In South China Sea Policy. In July 2012, while on a visit to Hanoi,
Secretary Clinton made these prepared remarks:
Third, on maritime security. In Bali, our leaders discussed the importance of
achieving a collaborative solution on the South China Sea. The United States has no
territorial claims there and we do not take sides in disputes about territorial or
maritime boundaries. But we do have an interest in freedom of navigation, the
maintenance of peace and stability, respect for international law, and unimpeded
lawful commerce in the South China Sea.

36

Craig Whitlock, Navys next stop in Asia will set China on edge, Checkpoint Washington, November 18,
2011
37

Oyaol Ngirainki, Guam Gets New Sub Buildings, NavyTimes, July 21, 2010.

38

U.S. Posts Pictures of Nuclear Sub in Show of Force, The Chosun Ilbo, July 8, 2010 and Mark
Thompson, U.S. Missiles Deployed Near China Send a Message, Time Magazine, July 8, 2010.
39

st

Sustaining U.S. Global Leadership: Priorities for 21 Century Defense (January 2012), 4-5.

15
And we believe the nations of the region should work collaboratively and
diplomatically to resolve disputes without coercion, without intimidation, without
threats, and without use of force.
Ill have more to say about this later today at the ASEAN Regional Forum. But I want
to underscore one point. Whenever possible, territorial issues should be resolved
between the claimants. But broader questions about conduct in disputed areas and
about acceptable methods of resolving disputes should be addressed in multilateral
settings such as the ASEAN Regional Forum. Issues such as freedom of navigation and
lawful exploitation of maritime resources often involve a wide region, and
approaching them strictly bilaterally could be a recipe for confusion and even
confrontation..."
In 2014, the United States raised South China Sea tensions, including land reclamation,
with China at their ministerial-level Strategic and Economic Dialogue held in Beijing from
July 9-10. A U.S. Senate resolution (S. RES.412) adopted on July 10, 2014 called on China
to withdraw its oil drilling rig HD 981 and accompanying ships from Vietnamese waters.
On July 11, Deputy Assistant Secretary of State Michael Fuchs called for a freeze in
Chinas provocative actions by at the 4th Center for Strategic and International Studies
(CSIS) conference on the South China Sea held in Washington, D.C. Fuchs stated:
We have called for claimant states to clarify and agree to voluntarily freeze certain
actions and activities that escalate the disputes and cause instability, as described in
the DoC.
He also outlined five steps that the United States was taking to reduce tensions and
work towards a negotiated settlement of disputes:
First, we have communicated our growing concerns from the President down to
the Chinese very clearly, both in public and in private most recently in the Strategic
Security Dialogue and the Strategic and Economic Dialogue that were held in Beijing
earlier this week. U.S. concerns are also regularly expressed at the highest levels to
other claimants, and we consistently encourage all claimants to clarify their claims
and base their claims on land features in the manner set out under the international
law of the sea, as reflected in the Law of the Sea Convention
Second, we are working with ASEAN and the international community to help put in
place diplomatic and other structures to lower tensions and manage these disputes
peacefully. We are reinforcing the importance of exercising restraint, lowering
rhetoric, behaving safely and responsibly in the sky and at sea, and resolving the
disputes in accordance with international law. This includes building habits of
cooperation through mechanisms like the ASEAN Regional Forum and the Expanded
ASEAN Maritime Forum
Third, the administration has invested considerably in the capabilities of our partners
in the maritime domain. For instance, last December Secretary Kerry announced an
initial commitment of $32.5 million in new regional and bilateral assistance to

16
advance maritime capacity building in Southeast Asia. Including this new funding, our
planned region-wide support for maritime capacity building exceeds $156 million for
the next two years.
Fourth, enhanced U.S. presence and posture in the Asia-Pacific as a result of the
rebalance continues to help ensure regional stability and deter conflict.
And fifth, we continue to urge all parties to use diplomatic means, including
arbitration or other dispute resolution mechanisms, to address these issues. This
includes encouraging ASEAN and China to quickly complete a meaningful Code of
Conduct. An effective Code of Conduct would help reduce tensions by creating crisis
management tools to address contentious issues as they arise.40
And significantly, President Obama called for the constructive management of
differences with China in a telephone conversation with President Xi Jinping on July 14.
The U.S. also has supported the right of the Philippines to lodge a claim to the U.N.
Arbitral Tribunal to seek a legal resolution of issues in dispute. The U.S. also supports
enhancing the maritime security capacities of the Philippines and Vietnam through the
sale and donation of patrol boats.
In December 2014, the U.S. State Department issued a position paper outlining why, in
its view, Chinas nine-dash line claim to the South China Sea is invalid under
international law.41

Australia and the South China Sea

Australia has generally remained silent in public on territorial disputes in the South
China Sea because it is not a party principal to these disputes and in deference to China,
its largest trading partner. Australian policy is undoubtedly shaped by Chinas strong
opposition to outside powers intervening in what Beijing insists is a bilateral matter
between the parties concerned. Australia therefore has not sought to play a direct role
as mediator in these disputes.
Foreign Minister Bob Carr told the ABC Radio in July 2012, for example:
I dont think it is in Australias interest to take on for itself a brokering role in
territorial disputes in the South China Sea. I dont think that is remotely in our
interest, I think we should adhere to the policy we have got of not supporting any
one of the nations making competing territorial claims and reminding them all that

40

Remarks Deputy Assistant Secretary Michael Fuchs to the Fourth Annual South China Sea Conference,
Center for Strategic and International Studies, Washington, D.C., July 11, 2014.
41

United States Department of State, Bureau of Oceans and International Environmental and Scientific
Affairs, China: Maritime claims in the South China Sea, Limits in the South China Sea, No. 143, December
5, 2014.

17
we want it settled, because we have a stake in it 60 per cent of our trade goes
through the South China Sea.42
In August 2012, Minister Carr, while rejecting a direct diplomatic role for Australia in the
settlement of territorial disputes in the South China Sea, offered two models for
consideration by the disputants.
I want to mention two relevant models that can be adopted for countries to
successfully manage competing interests.
The first is the Antarctic Treaty system.
The Treaty came into force in June 1961 after ratification by 12 countries then active
in Antarctic science.
Its objectives are:

to demilitarise Antarctica, establish it as a zone free of nuclear tests and the disposal
of radioactive waste, and to ensure that it is used for peaceful purposes only

to promote international scientific cooperation in Antarctica and,

to set aside disputes over territorial sovereignty.

Under the Treaty, countries have for more than 50 years put aside their differences
over sovereignty and cooperated to promote peace and science.
Members of the Antarctic treaty system have worked together to conserve and
manage Antarctica's living marine resources, including through sustainable fisheries
and by combating illegal fishing
The second relevant model is that of joint development zones.
Joint development zones are designed to facilitate equitable and mutually beneficial
development a concept that is expressly provided for in the UN Convention on the
Law of the Sea.
The zones are operating successfully around the world, including in South East Asia,
Africa, northern Europe and the Caribbean.
In our region, Cambodia, Malaysia, Thailand and Vietnam were early participants in
joint development zones.
Thailand and Malaysia entered into a Memorandum of Understanding (MoU) on joint
development of seabed resources in the Gulf of Thailand in February 1979.
Cambodia and Vietnam concluded an agreement in July 1982 over disputed waters
which placed a maritime area under a "joint utilisation regime."
Before Thailand and Vietnam concluded an agreement on maritime boundaries in
42

Radio
Australia
Transcript,
30
July
2012,
http://www.radioaustralia.net.au/international/radio/program/connect-asia/ australia-should-stay-out-
of-south-china-sea-dispute-says- carr/987932.

18
August 1997, they discussed the potential joint development of an overlapping area.
In June 1992, Vietnam and Malaysia applied the same principles in their
Memorandum of Understanding set in place to jointly exploit a "Defined Area" in
the Gulf of Thailand.
In 1999, Vietnam, Thailand and Malaysia also agreed on joint development of an 800
square kilometre zone.
With our neighbours, East Timor, we are jointly developing Timor Sea petroleum
resources for the mutual benefit of both countries based on groundwork laid with
Indonesia.
I'm not saying that joint development zones or an Antarctic Treaty-style system will
provide all the answers in the South China Sea.
But thinking creatively and constructively and examining models like these provide a
path that deserves to be explored.43
When Australian ministers do refer to the South China in public remarks they invariably
uphold the role of international law and the peaceful resolution of disputes. For
example, when Australias Minister for Defence visited Vietnam in August 2012, he
issued this statement after meeting with Vietnams Minister of National Defence,
Australia wants to see these disputes resolved amicably, in accordance with
international law and consistent with the law of the sea. In particular the UN
convention.44
However, Australia is in agreement with U.S. policy and joins with the United States in
including references to the South China Sea in joint statements issued after annual
ministerial meetings known as AUSMIN. For example, at the first Australian-United
States ministerial consultations after the formal announcement of the U.S policy of
rebalancing to Asia, held in Perth on November 14, 2012, Point 2 in joint communiqu
the ministers reaffirmed that both sides would support efforts by the ASEAN and China
to develop a Code of Conduct in the South China Sea.45
The joint communiqu issued after the AUSMIN meeting in Washington, D.C. on
November 20, 2013 encouraged ASEAN and China to reach agreement on a substantive
and meaningful Code of Conduct in the South China Sea as soon as possible.46 This
communiqu demonstrated continuity in Australian policy between the former Labor
Government (2007-13) and the new Liberal National Coalition government elected in
43

Dr Lee Seng Tee Lecture, The Australian National University, August 21, 1012.
http://www.foreignminister.gov.au/speeches/2012/bc_sp_120821.html.
44

Australia calls for South China Sea resolution, Radio Australia, August 30, 20912.

45

AUSMIN (Australia-United States Ministerial Consultations) 2012 Joint Communiqu, November 14,
2012. http://foreignminister.gov.au/releases/2012/bc_mr_121114.html.
46

AUSMIN
2013
Joint
Communiqu,
November
http://foreignminister.gov.au/releases/Pages/2013/jb_mr_131120.aspx?ministerid=4.

20,

2013.

19
September 2013.
At the most recent AUSMIN consultations held on August 12, 2014 in Sydney, the joint
communiqu devoted two paragraphs to tensions in the East and South China Seas.
Australia and the United States called for respect for international law, unimpeded
lawful commerce, and upholding freedom of navigation and over flight.47
The ministers called on claimant states to refrain from actions that could increase
tensions and to clarify and to pursue claims in accordance with international law. The
ministers also called on claimants to effectively implement the Declaration on Conduct
of Parties in the South China Sea by clarifying what types of activities should be
permissible, and what types of activities should be avoided in areas that are in dispute.
Australia strongly supports ASEAN and its position on the South China Sea. For time-to-
time Australia issues statements in response to developments that heighten tension and
threaten to escalate into violence and threaten the safety and security of sea-lanes.
During the visit of Vietnams Prime Minister Nguyen Tan Dung to Canberra from March
16-18, Prime Minister Tony Abbott and his guest issued a joint statement that included
the following policy statement:
Both sides emphasized the importance of maintaining peace, and stability in the
region, and ensuring security, safety and freedom of navigation and aviation, in
accordance with international law, including the United Nations Charter and the
1982 United Nations Convention on the Law of the Sea, without resorting to the
threat or use of force. Both sides called on all parties to exercise restraint and
refrain from actions that could increase tension in the region. Both sides agreed on
the urgent need to conclude a Code of Conduct for the South China Sea.

Conclusion
This paper has presented a broad overview of U.S. policy towards the South China Sea
from the early 1990s to the present. The United States maintained a consistent policy
under the Clinton and George H.W. Bush Administrations. The U.S. continually
expressed its concern that tensions arising from territorial disputes could spill over into
conflict. U.S. policy was limited to ensuring safety of the sea-lanes of communication for
commercial and military traffic.
United States policy on the South China Sea underwent a sea change under the
Administration of President Barrack Obama. In July 2010 Secretary of State Hillary
Clinton declared at a meeting of the ASEAN Regional Forum that although the U.S. took
no side on the issue of territorial and sovereignty claims in the South China Sea it had a
national interest in the South China Sea relating to freedom of navigation, over flight
and unimpeded lawful commerce. The U.S. therefore urged all parties to refrain from
47

AUSMIN
2014
Joint
Communiqu,
http://www.state.gov/r/pa/prs/ps/2014/230524.htm.

August

12,

2014.

20
the threat or use of force, settle disputes on the basis of international law including the
United Nations Convention on the Law of the Sea. This has remained U.S. declaratory
policy up to the present.
Australia generally adopts a low-key stance in public on South China Sea issues. For
example, in private Australia supports the United States at meetings of multilateral
regional institutions. In particular Australia states it has an interest in security, safety
and freedom of navigation and aviation in the South China Sea.
Australia, however, does make public comments on the South China Sea at annual
Australia-United States ministerial meetings. These are general statements urging
parties not to threaten or use force, to settle disputes peacefully under international
law including UNCLOS. Australia also endorses ASEAN policy towards the South China
Sea by publicly urging parties to exercise restraint, and endorsing the implementation of
the 2002 DOC and the early conclusion of the COC for the South China Sea.
Present policies of the United States and Australia do not go far enough to dissuade
China to step back from its aggressive assertiveness in the South China Sea including its
present land reclamation activities. Neither country has fashioned a workable strategy
to counter Chinas use of fishermen, oil exploration platforms and paramilitary maritime
law enforcement vessels to intimidate and coerce Southeast Asian states into accepting
Chinas claims to indisputable sovereignty. In other words, the policy of not taking
sides is in reality a policy of acquiescing to China.