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the national bureau of asian research

nbr special report #27 | may 2011

Foreign Military Activities


in Asian EEZs: Conflict Ahead?

Mark J. Valencia

mark j. Valencia is Senior Research Associate at the Nautilus Institute and a


National Asia Research Associate. He can be reached at <mjvalencia@gmail.com>.

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EXECUTIVE SUMMARY
This essay describes the maritime geostrategic context and changing security paradigm
in Asia, delineating where, how, and why the maritime perceptions, strategies, and policies
of key Asian actors clash with those of their neighbors and the U.S.

Main Argument
The political and legal defense of U.S. military activities in foreign exclusive economic
zones (EEZ), such as Chinas, is not guaranteed to succeed. Law and practice in this regard
are evolving. Unless some understanding and accommodation are reached regarding various
red lines, serious international incidents are likely to increase in frequency and intensity.
Possible ways forward, which are not mutually exclusive, include managing the evolution
of the status quo, U.S.-China bilateral agreements, international arbitration, and a regional
agreement, perhaps led by ASEAN.

Policy Implications
A more effective approach to U.S. military operations in foreign EEZs that would
enhance U.S. soft power would be to discuss, negotiate, and, if feasible, accommodate
other countries main security concerns.
Ratification of the 1982 UN Convention on the Law of the Sea (UNCLOS) would greatly
strengthen the U.S. political and legal position in these matters.
The U.S. should consider taking the lead in negotiating a set of voluntary guidelines
regarding foreign military activities in EEZs that would be conducive to a stable and
secure maritime environment in Asia.
If the U.S. continues its military activities in foreign EEZs, eschews agreements or
voluntary guidelines, and does not ratify the UNCLOS, a regime may evolve without
U.S. input, which would not be in U.S. interests.
G
eographically and strategically, Asia has a significant maritime component that is
sometimes neglected in security analyses of the region. Over the past four decades,
multilateral discussions concerning the law of the sea and a growing recognition of the
importance of marine resourcestheir uses, as well as their fragility and limitshave
resulted in widespread claims to maritime space by many of the worlds nations. The 1982 UN
Convention on the Law of the Sea (UNCLOS), an intricately negotiated agreement that went into
effect on November 16, 1994, is now the governing regime for the oceans. Indeed, the state rights
and responsibilities defined in the UNCLOS are international law for the vast majority of nations
that have ratified it, including all those active in Asia, except for Cambodia, Thailand, North
Korea, and the United States. In particular, the convention created exclusive economic zones (EEZ)
extending two hundred nautical miles (nm) from the shores of coastal states and developed new
principles relating to the rights and responsibilities of coastal and maritime states in these EEZs,
including scientific research and environmental protection.
The 1982 UNCLOS also introduced new uncertainties and flashpoints into the region,
particularly in regard to continental shelf and EEZ claims and boundaries. Indeed, the perception
of the very scope of the nation is changing, and with it, the maritime dimension of the security
paradigm. Maritime issues have now risen to the forefront of regional security concerns. Many
relatively new concerns such as the proliferation of WMDs; maritime terrorism; piracy; safety and
security of sea lines of communication; the smuggling of arms, drugs, and humans; pollution from
oil spills; illegal fishing; and exploitation of others offshore resources are essentially maritime.
These issues necessitate acceptance of broader responsibilities and a reordering of priorities by
military authorities, both for force-structure development and for operations and training.
Along with the requirements for defense self-reliance and force modernization, these concerns
are reflected in the significant maritime dimension of current arms acquisition programs in the
region: maritime surveillance and intelligence collection systems, multirole fighter aircraft with
maritime attack capabilities, modern surface combatants, submarines, antiship missiles, naval
electronic warfare systems, and mine warfare capabilities. Because some of these new systems
have offensive capabilities, they can be seen as provocative, and thus destabilizing, by those
countries that do not have such capabilities and lack the means to acquire them. Possession of
these systems undoubtedly increases the risk of inadvertent escalation in times of conflict. It is
therefore particularly important that mechanisms be instituted to address hot button maritime
issues emerging on this broad, new geopolitical canvas. This is especially true regarding the regime
for intelligence-gathering and military activities in EEZs, which are at the geographic and political
frontier of the developing dialectic between coastal states and maritime powers.
There are several specific driving factors that bring this set of issues to the fore. First, military
activities in the EEZ were a controversial issue during the negotiation of the text of the 1982
UNCLOS and continue to be so in practice. Some coastal states in Asia, such as Bangladesh,
Malaysia, India, and Pakistan, contend that other states cannot carry out military exercises or
maneuvers in or over their EEZs without their consent. In what Aaron Friedberg calls a quiet
drama unfolding for over a decade,1 China by its actions (e.g., the EP-3, Impeccable, and Bowditch
incidents) is leaning in this direction, challenging unfettered U.S. naval preeminence. Coastal
countries are concerned that such uninvited military activities could become gunboat diplomacy,

1 Aaron Friedberg, Get Ready for More Naval Sparring with China, Foreign Policy, Shadow Government web log, March 13, 2009, http://
shadow.foreignpolicy.com/posts/2009/03/13/get_ready_for_more_naval_sparring_with_china.

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threaten their national security, or undermine their resource sovereignty. But as a maritime
power with global reach, the United States insists on the freedom of military activities in EEZs
out of concern that its naval and air access, mobility, and flexibility could be severely restricted.
(Presently, only the United States is a global maritime power. France, the United Kingdom, and
perhaps Australia can be considered maritime military powers, whereas Japan is a commercial
maritime power.)
Second, as technology advances, misunderstandings regarding military and intelligence-
gathering activities in foreign EEZs are bound to increase. There have been dramatic advancements
in the range and accuracy of both weaponry and intelligence collection, particularly among the
maritime powers, using unmanned aerial vehicles (UAV) or drones, unmanned surface vehicles
(USV), unmanned underwater vehicles (UUV), Aegis, satellites, submarines, aircraft carriers,
missiles, over-the-horizon weaponry, and now specialized littoral platforms. There also continue
to be distinct advantages for maritime powers that are able to operate militarily in and over foreign
EEZs, such as showing the flag, testing the response of the coastal state, or gathering certain types
of signals intelligence. Maritime powers will most likely continue to resist any restrictions on such
activities. Indeed, such activities are likely to become ever more intensive, intrusive, controversial,
and dangerous, while being undertaken by an increasing number of nations, such as China and
Japan. However, some confusion and even double standards exist regarding foreign military
activities in EEZs and the EEZ regime itself. Stark differences of opinion abound.
Meanwhile, the security concerns of coastal states increasingly include the protection of
scarce resources, the growing threat to the marine environment, and the safety of sea lanes.
Indeed, coastal states are in general placing greater importance on control of their EEZs. Of
the approximately 1,700 warships expected to be built during the next few years, a majority
will be smaller coastal patrol vessels and corvettes, suggesting strong coastal state emphasis on
enforcement of their EEZ regimes.2
Third, the end of the Cold War and the nature of todays new threatssuch as terrorism,
proliferation of WMDs, and the smuggling of conventional arms, drugs, and humansfurther
encourage both coastal and maritime states to extend surveillance and control beyond their
territorial seas, and in some cases into other countries EEZs. Certainly in the aftermath of
September 11, many nations, and the United States in particular, have increased their scrutiny of
both military and commercial aircraft and ships approaching from near and far. Fourth, given
the myriad boundary disputes and overlapping claims, it is not always clear where one nations
jurisdiction ends and anothers begins.
These developments imply that certain UNCLOS provisions, formulated 30 years ago in a very
different political and technological context, may be inappropriate and consequently should be
reinterpreted in light of these new circumstances. What is needed is an assessment of how the
maritime security paradigm is changing, a delineation of the resultant emerging international
issues, and an analysis of possible responses. This essay traces recent trends and addresses where,
how, and why the maritime perceptions, policies, and strategies of key Asian actors clash or coincide
with those of their neighbors and the United States. The first section addresses the geostrategic
context of maritime security issues in the Asia-Pacific, focusing on the strategic concerns of key
regional actors. The second section identifies recent incidents involving foreign military activities

2 EEZ Group 21, Guidelines for Navigation and Overflight in the Exclusive Economic Zone: A Commentary, Ocean Policy Research
Foundation, March 2006, available from the Nippon Foundation Library, http://nippon.zaidan.info/seikabutsu/2005/00817/mokuji.htm.

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within Asian EEZs and explains the differing perceptions regarding these incidents. The third
section then examines these issues in the context of the 1982 UNCLOS and other regulatory
frameworks, while the final section concludes with some thoughts on the way forward. This essay
aims to enrich policymakers understanding and perceptions of the evolving maritime security
paradigm in Asia, as well as of issues regarding foreign military activities in Asian EEZs, and thus
better inform decisionmaking on such issues.

Geostrategic Context
It is often asserted that the strategic priorities of the United States, a status quo great power, and
a rising China will inevitably clash. But where and how are they likely to do so, and how are recent
incidents involving a Lockheed EP-3 aircraft, the USNS Bowditch, and the USNS Impeccable both
symbolic and symptomatic of such a clash of interests?

U.S. Strategic Concerns


According to U.S. Secretary of State Hillary Clintons speech in Honolulu on January 12, 2010,
the U.S. is back in Asiato stay.3 The U.S. maritime objective in Asia is fairly clearmaintain
the status quo in which the United States enjoys dominance of the seas. The countrys first and
foremost priority in Southeast Asia is keeping critical military and commercial sea lanes open,
safe, and secure for U.S. vessels and those of friends and allies such as Japan. Such sea lanes include
the Malacca and Singapore straits; certain Indonesian straits like Lombok, Makassar, and Ombai-
Wetar; and the Taiwan and Korea straits in Northeast Asia. The other side of this coin is the U.S.
strategy to deny use of these straits to enemies in times of conflict. Such potential enemies include
China, which claims much of the East China and South China seas. As U.S. Secretary of Defense
Robert Gates said, the South China Sea is an area of growing concern.4 This strategic denial
imperative underlies much U.S. military and foreign policy in Southeast Asia. The possible need to
defend Taiwan against an attack from China also has a major maritime component. As part and
parcel of the U.S. interest in securing sea lanes and maintaining freedom of navigation, the United
States undertakes military surveys and surveillance of the region, including in Chinese-claimed
waters, as well as of Chinas naval assetsmuch to Beijings chagrin.
To achieve its strategic objectives and preserve access to the Asian maritime commons,
the United States must enhance relations with allies and forge new ones with partners in the
region.5 This involves reinforcing its defenses in the Western Pacific by strengthening relations
with existing treaty allies, such as the Philippines and Thailand, and with strategic partners like
Singapore, and by deepening military relations with Indonesia, Malaysia, and Vietnam. Specific
areas of cooperation include maintaining the ability to fight in anti-access environments.6 In
short, the United States intends to maintain a strong military architecture in Southeast Asia.7 To
accomplish this, U.S. forces will be more forward deployed, with 60% of the countrys naval

3 Clinton Unveils U.S. Policy toward Asia-Pacific Region, Xinhua, January, 13, 2010, http://news.xinhuanet.com/english/2010-01/13/
content_12801629.htm.
4 Gates on China: Speaking the Truth Makes the Pacific a Safer Place, Wall Street Journal, June 6, 2010.
5 Joey Long, The 2010 U.S. Quadrennial Defence Review: Implications for Southeast Asia, RSIS Commentaries, no. 19, February 17, 2010; and
Richard A. Bitzinger, The Dog That Didnt Bark? The 2010 Quadrennial Defence Review, RSIS Commentaries, no. 18, February 17, 2010.
6 Michael Richardson, Chinas Navy Changing the Game, Japan Times, May 13, 2010.
7 Seoul Must Beware of U.S.-China Naval Competition, Chosun Ilbo, English edition, July 6, 2010.

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