prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.

Report 1: Since its founding in 2006, the National Popular Vote (NPV) initiative has promoted an agreement among the states, an interstate compact that would effectively establish direct popular election of the President and Vice President without a constitutional amendment, while retaining the structure of the electoral college system  The United States is unique among "presidential" republics by providing an indirect election to choose its chief executive  The President and Vice President of the United States are selected not by registered voters, but by the electoral college, electors appointed in the states "in such Manner as the Legislature thereof may direct     " Alexander Hamilton, who was "present at the creation" of the Constitution in 1787, commented favorably on the electoral college system in The Federalist : The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents     I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent  It unites in an eminent degree all the advantages the union of which was to be wished for  Notwithstanding Hamilton's endorsement, the first proposal to change the electoral college system by constitutional amendment was introduced as early as 1800, and since that time more than 700 proposals to reform or eliminate the college have been introduced in Congress  Reform advocates have long focused on the fact that it does not provide for direct democratic election, that less-populous states are afforded an arithmetical advantage due to the assignment of two electors to each state, regardless of population, and that the winner-take-all system makes it possible for candidates to win an electoral college majority and the presidency, while gaining fewer votes than their principal opponents in the popular election  Between 1949 and 1979, Congress considered amendments to reform the electoral college, or replace it with direct popular election, in committee and on the floor of both chambers  Proposed amendments must, however, meet the requirements of the Constitution's Article V, which calls for two-thirds approval by both houses of Congress, and ratification by three-fourths of the states; to date, no electoral college reform proposal has met these requirements  Proponents of the National Popular Vote initiative contend that their plan will achieve direct popular election while circumventing the requirements of Article V, and will guarantee that the popular vote winners will always be elected President and Vice President  The fundamentals of the electoral college system were established by Article II, Section 1 of the U S  Constitution, and subsequently revised by the Twelfth Amendment  The Constitution's minimal provisions have been complemented over the past two centuries by a range of federal and state laws, political party procedures, and enduring political traditions, leading to the system as it exists today  The salient features of the contemporary system are detailed below  The electors are collectively known as the electoral college; although this phrase does not appear in the Constitution, it gained currency in the early days of the republic, and was recognized in federal law in 1845  The electoral college has no continuing existence; its sole purpose is to elect the President and Vice President  Each state is allocated a number of electors equal to the combined total of its U S  Senate and House of Representatives delegations  The District of Columbia is also allocated three electors  At present, the total is 538, reflecting the combined size of the Senate (100 Members), the House (435 Members), and the District of Columbia electors  Any person may serve as an elector, except Senators and Representatives, or any other person holding an office of "trust or profit" under the United States  Article II, Section 1 of the Constitution empowers the states to "appoint [electors], in such Manner as the Legislature thereof may direct     " This grant of authority provides the constitutional basis claimed for the NPV initiative  In practice, all states currently provide for popular election of their electoral college delegations  Candidates for the office of elector are nominated by political parties and other groups on the presidential ballot in each state  In most cases, the candidates for the office of elector are nominated by the state party committee or the party's statewide convention  The winning presidential nominees must gain a national majority of 270 or more electoral votes, out of the 538 total, in order to be elected  If no ticket of candidates attains a majority, then the House of Representatives elects the President, and the Senate the Vice President, in a procedure known as contingent election  Candidates for the office of elector are selected by their respective political parties  They are expected to vote for the presidential and vice presidential candidates to whom they are pledged  Some states seek to require them to so vote by law or other means, but most constitutional scholars hold that the electors remain free agents under the Constitution, and that they may vote for any person they choose  On rare occasions, an elector will vote for a different candidate, or abstain from casting a vote for any candidate; he or she is known as a "faithless elector " The goal of presidential campaigns under the existing system is to win by carrying states that collectively cast a majority of electoral votes  Political parties and presidential campaigns tend to focus on states that are closely contested (widely referred to as "battleground" states), or that have large delegations of electoral votes, or both  Winning a majority of the more populous and/or battleground states is considered crucial to obtaining the necessary electoral vote majority  In 48 states and the District of Columbia, the presidential/vice presidential ticket winning the most popular votes (a plurality or more) in that state is awarded all its electoral votes  That is to say, the winning party's entire ticket of electors is elected  This is referred to as the "winner-take-all" or "general ticket" system  Presidential Election Day is set by law for Tuesday after the first Monday in November every fourth year succeeding the election of President and Vice President  On Presidential Election Day, voters cast one vote for the candidates they support  They are, however, actually voting for the state political party "ticket" of electors supporting those presidential and vice presidential candidates  Presidential electors assemble on the first Monday after the second Wednesday in December following the general election  They meet in their respective states, not collectively, and cast separate votes by ballot for the President and Vice President  After the electors vote, the results are sent by the states to Congress and various other federal authorities  On January 6 of the year following a presidential election, Congress meets in a joint session to count the electoral votes and make a formal declaration of which candidates have been elected President and Vice President  A range of factors contributed to the emergence of the National Popular Vote initiative in the first decade of the 21 st century  A major source was frustration by reform advocates after three decades of failed attempts to secure congressional approval for a direct popular election amendment  A more immediate spur was the contentious and disputed presidential election of 2000, which is regarded as having been a major factor contributing to the development of the NPV proposal  One of the factors cited for the emergence of the NPV initiative has been the exacting requirements set by the Constitution for amendments, in this case, a direct popular election constitutional amendment  As noted previously, approval by two-thirds of Members present and voting is required in both houses when Congress proposes an amendment, followed by ratification by three-fourths of the states, 38 at present, usually within a seven-year period specified by Congress  Between 1948 and 1979, Congress debated electoral college reform at length; throughout this time, hundreds of reform proposals were introduced in both chambers  They generally centered on one of two courses: "end it" by eliminating the entire electoral college system and establishing direct popular election, or "mend it" by reforming its more controversial provisions  Between 1948 and 1979, proposed amendments were the subject of hearings in the Senate and House Judiciary Committees on 17 different occasions, while electoral college reform was debated in the Senate on five occasions and twice in the House during this period  Proposals were approved by the necessary two-thirds majority twice in the Senate and once in the House, but never in the same Congress  Following the 1979 defeat of a direct popular election amendment on the Senate floor, and the retirement or defeat of prominent congressional advocates, the question of electoral college reform largely disappeared from public attention and Congress's legislative agenda  Although Senators and Representatives continued to introduce reform proposals, few received action beyond routine committee referral, and in time, the number of measures introduced dropped to zero  Even after the presidential elections of 2000 and 2016, in which the winner of the electoral vote won fewer popular votes than his opponent (a so-called "misfire") , there was little evidence that Congress was prepared to consider an electoral college reform amendment  Proposals to replace the electoral college system with direct popular election continued to be introduced, but in dwindling numbers as the years passed  No proposal for direct popular election was introduced in the 113 th Congress  By comparison, 41 direct popular election or electoral college reform amendments were proposed in the 95 th Congress (1977-1978)  Following the 2016 election, however, four constitutional amendments introduced late in the 114 th Congress proposed eliminating the electoral college and replacing it with direct election  To date in the 116 th Congress, three amendments to establish direct popular election by constitutional amendment have been introduced, but no action beyond committee referral has been taken on them  Until recently, survey research findings showed public support for presidential election reform through direct popular election by sizable margins  As early as 1967, the Gallup Poll reported that 58% of respondents supported direct election, compared with 22% who favored retaining the electoral college  More recently, Gallup's 2013 survey recorded that 63% of respondents favored an amendment providing for direct election, while 29% favored retention of the electoral college  Following the 2016 election, however, overall support for direct election was measured at 49% in favor to 47% opposed  It is arguable that the change in public attitudes was influenced by the 2016 election results, in which the Republican nominees won the election with a majority of electoral votes, but fewer popular votes than their Democratic opponents  For instance, Gallup reported a shift to greater support for the electoral college system by respondents who identified themselves as "Republican" or "Lean Republican " Conversely, already high levels of support for direct popular election among respondents who identified themselves as "Democratic" or "Lean Democratic" rose still further in the post-2016 election Gallup Poll  To date, CRS has identified one survey that was specifically designed to measure public commitment to the NPV initiative  A March 27, 2019, Politico/Morning Consult poll posed relevant questions on the presidential election process and the NPV compact  The first question, which presented a general outline of the existing electoral college system and the generic alternative of direct popular election, reported that respondents preferred direct election by 50% to 34% for retaining the electoral college, and 16% reporting "Don't know/No opinion " The next question explained the proposed NPV compact and asked respondents' preference for NPV or the electoral college method  Although the level of support for NPV was lower than that measured for generic direct popular election, a plurality of respondents to this question favored the "National Popular Vote Interstate Compact" by a plurality of 43% in favor, to 33% opposed and 23% who reported "Don't know/No opinion " The disputed presidential election of 2000 was arguably a catalyst for new thinking on electoral college reform   Following a closely contested campaign, Republican candidates George W  Bush and Richard Cheney were elected over Democratic nominees Al Gore Jr  and Joseph Lieberman following a bitter dispute over election results in Florida tha t was ultimately decided by the Supreme Court   The high court's decision left Bush and Cheney with a narrow plurality in Florida of 537 popular votes and a similarly narrow electoral college majority of 30 states with 271 electoral votes, while their Democratic opponents took 20 states and the District of Columbia with 266 electoral votes (one District of Columbia elector cast a blank ballot in protest against the outcome)   It was the first election since 1888 in which the candidates elected uncontestably won fewer popular votes than their principal opponents : the Gore / Lieberman Democratic ticket gained 50,992,335 popular votes to 50,455,156 for Bush / Cheney  The se election results generated considerable discontent with the system  Some critics argued for a constitutional amendment, but the 107 th Congress faced a heavy legislative workload throughout this period, which initially included enactment of President George W  Bush's legislative program and was later expanded to urgent responses to the terrorist attacks of September 1 1, 2001   Rather than focus on the lengthy process associated with consideration of a constitutional amendment, Congress focused on legislati ve remedies  The Help America Vote Act of 2002, passed in response to the numerous irregularities in voting systems and procedures revealed by the 2000 election, mandated election administration reforms and v oting system technology enhancements (funded in part by federal grants to the states) intended to ensure accurate and timely voting and vote tabulation in future elections  In 2016, the presidential election was again won by nominees who gained a majority of electoral votes but fewer popular votes than their major party opponents  Although proposals to amend the Constitution to provide direct popular election were introduced in response to this occurrence late in the 114 th Congress , and again in the 115 th Congress, the 2016 results did not result in the degree of c ontroversy a nd activism that followed the electoral college "misfire " of 2000  T he following factor may have contributed to this situation : i n 2000, a shift in Florida's electoral votes from Bush/Cheney to Gore/Lieberman would have changed the election result; by comparison, in 2016, a shift in the state with the closest vote margin, Michigan , would not have altered the election  While the 2000 election's "misfire" did not result in consideration of a constitutional amendment, it did prompt considerable study and investigation into new approaches to electoral reform among scholars of the presidential election process and political activists  Law professors Robert W  Bennett of Northwestern University, Vikram Amar of the University of California-Davis, and Akhil Amar of Yale University School of Law are generally credited as the intellectual godparents of the concept that ultimately evolved into the National Popular Vote Interstate Compact, which relies on the Constitution's broad grant of power to each state to "appoint, in such Manner as the Legislature thereof may direct [emphasis added], a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress " Project FairVote, an issue advocacy group self-described as a nonprofit, nonpartisan "501(c)(4)" organization, appears to have been an incubator of the NPV concept  FairVote has supported NPV for "over a decade," and was an early supporter of National Popular Vote Inc , the plan's official advocacy group; moreover, longtime FairVote board members Robert Richie and the late Representative John B  Anderson were early supporters of the National Popular Vote initiative and contributors to its manifesto, Every Vote Equal   As noted previously, the NPV initiative was the ultimate result of the various studies and proposals offered following the presidential election of 2000  The NPV initiative seeks to establish direct popular election of the President and Vice President through an interstate compact, rather than by constitutional amendment  Ideally, under the compact's provisions, legislatures of the 50 states and the District of Columbia would pass legislation binding the signatories to appoint presidential electors committed to the presidential/vice presidential ticket that gained the most votes nationwide   If all 50 states and the District of Columbia were compact members, this would deliver a unanimous electoral college decision for the candidates winning a plurality of the popular vote  Specifically, the plan calls for an agreement among the states, an interstate compact effected through state legislation, in which the legislature in each of the participating states agrees to appoint electors pledged to the candidates who won the nationwide popular vote   State election authorities would count and certify the popular vote in each state, which would be aggregated and certified as the "nationwide popular vote " The participating state legislatures would then choose the slate of electors pledged to the "nationwide popular vote winner," notwithstanding the results within their particular state s   To ensure success, the initiative would come into effect only if states whose total electoral votes equal or exceed the constitutional majority of 270 were to approve the plan  If the nationwide popular vote were effectively tied, the states would be released from their commitment under the compact, and could choose electors who represented the presidential ticket that gained the most votes in each particular state  One novel NPV provision would enable the presidential candidate who won the national popular vote to fill any vacancies in the electoral college with electors of his or her own choice  States would retain the right to withdraw from the compact, but if a state chose to withdraw within six months of the end of a presidential term, the withdrawal would not be effective until after the succeeding President and Vice President had been elected  The NPV advocacy effort is managed by National Popular Vote Inc , a "501(c)(4)" nonprofit corporation established in California in 2006 by Barry Fadem, an attorney specializing in initiative and referendum law, and John R  Koza, Ph D , an automated systems scientist and entrepreneur  As a 501(c)(4) entity, it is permitted to engage in political activity in furtherance of its goal, without forfeiting its tax-exempt status, so long as this is not its primary activity  NPV states on its website that its "specific purpose is to study, analyze and educate the public regarding its proposal to implement a nationwide popular election of the President of the United States " Dr  Koza serves as chairman of NPV Inc , and Mr  Fadem serves as president  NPV's advisory board includes former Senators and Representatives of both major political parties  In 2006, National Popular Vote Inc  published a detailed handbook, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote   This publication, in its fourth edition at the time of this writing, provides a detailed account of various issues related to the NPV initiative, including the electoral college, earlier reform efforts, interstate compacts, the text of the proposed compact, a strategy for advancing the initiative, and a 340-page section addressing "myths about the National Popular Vote Compact " National Popular Vote Inc  maintains an office in Mountain View, CA  Supporters in various state legislatures began to introduce measures to adopt the interstate compact shortly after NPV's inaugural press conference on February 23, 2006  The NPV Compact has been introduced at various sessions in the legislatures of all 50 states and the Council of the District of Columbia, which performs the functions of a state legislature in the nation's capital, and has received some form of active consideration in 38 states and the D C  Council  Among other activities, NPV maintains a regular communications program of email newsletters announcing activities and soliciting readers to petition governors and state legislators to support the compact  At the time of this writing, NPV claims that 3,112 state legislators have either sponsored or cast a recorded vote in their respective legislatures for the compact  NPV also claims endorsements from legislators and endorsements by the New York Times , Los Angeles Times , Chicago Sun-Times , Minneapolis Star Tribune , Boston Globe , Miami Herald , and other newspapers  NPV also advocates use of the citizen initiative process where available to enact state adherence to the compact; it asserts that when Article II, Section 1, clause 2 grants authority to the states to appoint "in such Manner as the Legislature thereof may direct," the authority extends to the states' entire lawmaking process, which in some states includes the proposal and passage of legislation and constitutional amendments through citizen initiative  The citizen initiative approach to the interstate compact, however, has yet to be used at the time of this writing  At the time of this writing, in May 2019, the following 14 states and the District of Columbia have adopted the National Popular Vote Compact  Collectively, they are assigned a total of 189 electoral votes  The National Popular Vote Interstate Compact has been introduced since its inception in all 50 states and the District of Columbia  States that have adopted NPV at the time of this writing are listed in chronological order, by year of adoption, as follows: Hawaii (4 electoral votes), 2008; Illinois (20 electoral votes), 2008; Maryland (10 electoral votes), 2008; New Jersey (14 electoral votes), 2008; Washington (12 electoral votes), 2009; Massachusetts (11 electoral votes), 2010; District of Columbia (3 electoral votes), 2010; Vermont (3 electoral votes), 2011; California (55 electoral votes), 2011; Rhode Island (4 electoral votes), 2013; New York (29 electoral votes), 2014; Connecticut (7 electoral votes), 2018; Colorado (9 electoral votes), 2019; Delaware (3 electoral votes), 2019; and New Mexico (5 electoral votes), 2019  After initial momentum in 2008, when four states joined the compact in one year, NPV made slower progress toward its goal of approval by states accounting for 270 electoral votes  Highlights were California's approval in 2011, which added 55 electoral votes to the tally, and New York's accession to the compact in 2014  Beginning with Connecticut's approval in 2018, followed in 2019 by Colorado, Delaware, and New Mexico, 24 additional electoral votes were added to the NVP count, bringing the total to 189, 70% of the 270 votes needed for NPV to go into effect  By early May 2019, legislation to join the NPV had been introduced in the current session of at least one chamber of the legislature in 14 states that controlled a combined total of 150 electoral votes  As of April 17, the compact had been approved in Nevada by the Assembly (lower chamber of the legislature) and in Oregon by the Senate  Accession by these two states would raise the NPV member total to 202 electoral votes  Conversely, proposals to rescind approval of the NPV Interstate Compact have been introduced in the legislatures of Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and Washington, to date; none has been approved  Some observers note that, despite NPV's assertion of bipartisan support, all the jurisdictions that have joined the compact to date could be identified as "leaning" Democratic or "solid" Democratic in their support of the Democratic Party, as classified by a recent Gallup survey  For instance, 11 of the 14, including California, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, Rhode Island, and Vermont, were found by Gallup to be among the "most solidly Democratic states in 2017 " Alluding to this fact, one commentator observed that [a]ll the states to have joined so far are very blue  Until some purple states and red states sign on, the compact has little in the way of territory to conquer     The seven states where President Obama won [in 2012] by the widest margins, along with D C , have joined  So have three others—New Jersey, Illinois and Washington—where Obama won by at least 15 percentage points  But none below that threshold have done so  The 2016 presidential election results in Colorado, Connecticut, Delaware, and New Mexico, the most recent adherents to the NPV compact, arguably confirm this observation—the Democratic candidates won the popular vote in all four states, by margins of between 4 9% in Colorado to 13 7% in Connecticut  On the other hand, several states where the NPV remained under active consideration in 2019—Arizona, Florida, Georgia, Idaho, Indiana, Kansas, North Carolina, Ohio, and South Carolina—were carried by the Republican presidential ticket in 2016  As the NPV campaign developed momentum in the states, particularly between 2008 and 2011, defenders of the existing arrangements and the electoral college announced measures to promote retention of the electoral college system  In October 2011, the Heritage Foundation, a conservative public policy institute, released a report opposing the NPV compact  That same month, Roll Call reported that the State Government Leadership Foundation, a project of the Republican State Leadership Committee, would begin a campaign to defend the electoral college and counter recent NPV gains  Further activity, however, does not appear to have been undertaken by these groups by the time of this writing  Arguments in support of and opposed to the National Popular Vote proposal resemble those advanced in favor of and against direct popular election of the President  The central issue turns on the question of the asserted simplicity and democratic attractiveness of the direct election idea as compared to a more complex array of factors cited by supporters of the electoral college system  Proponents of the NPV initiative arguably share the philosophical criticism voiced by proponents of direct popular election, who maintain that the electoral college system is intrinsically undemocratic—it provides for "indirect" election of the President and Vice President  This, they assert, is an 18 th century anachronism, dating from a time when communications were poor, the literacy rate was much lower, and the nation had yet to develop the durable, sophisticated, and inclusive democratic political system it now enjoys  They maintain that only direct popular election of the President and Vice President is consistent with modern democratic values and practice  Beyond this fundamental challenge, critics cite what they identify as a wide range of technical failings of the electoral college arrangement  Perhaps the most prominent of these is that the electoral college system can result in the election of a President and Vice President who have won the electoral vote, but gained fewer popular votes than their major opponent  This condition results at least in part from the nearly universal reliance on the "winner-take-all" or general ticket system of awarding electoral votes in the states, which is also criticized by NPV advocates  Under the general ticket system, the candidates winning the most popular votes in a state (a plurality is sufficient) are awarded all that state's electors and electoral votes; under these circumstances, a presidential ticket can gain all of a state's electoral votes on even a slim margin of popular votes  Presidents were elected in 1876, 1888, 2000, and 2016 who received fewer popular votes than their major party opponents, while the runner-up in both popular and electoral votes was elected by the House of Representatives when four candidates split the vote in the presidential election of 1824  NPV supporters advocate the compact on the grounds of fairness and respect for the voters' choice  At the core of their arguments, they assert that the process would be simple, national, and democratic; the NPV interstate compact would provide de facto for a single, democratic choice, allowing all the nation's voters to choose the President and Vice President directly, with no intermediaries  The "people's choice," they assert, would win in every election, and every vote would carry the same weight in the election, no matter where in the nation it was cast  No state would be advantaged, nor would any be disadvantaged  According to NPV, the central argument in favor is that the compact "would guarantee the Presidency to the candidate who receives the most popular votes [or at least a plurality] in all 50 states (and the District of Columbia) " According to NPV, there would never again be a presidential election "misfire" or another "wrong winner " Other elements of the electoral college system criticized by NPV advocates (and other electoral college reformers) would arguably disappear or be rendered irrelevant  These include the faithless elector phenomenon, the general ticket system's asserted "disfranchisement" of voters who backed the losing candidates, and various asserted "voting power" advantages attributed to large (populous) states, small states, states with large populations of noncitizens, states with low rates of voter participation, and populous states with concentrations of minority-group voters  In addition, the NPV compact would almost certainly eliminate the need for contingent election of the President and Vice President under the Twelfth Amendment  NPV advocates also assert the compact would provide a practical benefit to states that tend to be noncompetitive in presidential elections and which therefore receive fewer campaign visits by major party candidates  With "every vote equal," NPV maintains that presidential and vice presidential nominees and their organizations would need to spread their presence and resources more evenly as they campaigned for every vote nationwide, rather than concentrate on winning key "battleground" states  They assert that, under the present system candidates have no reason to poll, visit, organize, campaign, or worry about the concerns of voters of states that they cannot possibly win or lose  This means that voters in two thirds of the states are effectively disenfranchised in presidential elections because candidates concentrate their attention on a small handful of "battleground" states  In 2004, candidates concentrated over two-thirds of their money and campaign visits in just five states; over 80% in nine states, and over 99% of their money in just 16 states  For instance, NPV notes that California voters seldom see the presidential or vice presidential nominees or benefit from campaign spending because the Golden State, having voted Democratic since 1988, is considered to be reliably "blue," and Democratic Party candidates are said to take its 55 electoral votes for granted  They also note that Republican candidates make few California appearances, but, NPV asserts, for the opposite reason: why spend time and resources in support of an apparently hopeless cause? Similar arguments made by NPV on the Republican side apply to Texas, a state that has voted for Republican presidential nominees since 1980  In 2016 for instance, NPV claims that no Democratic nominee participated in a general election campaign event in California or Texas, while a Republican nominee appeared in only one campaign event in each of those states  By comparison, according to their calculations, the hotly contested battleground states of Florida, North Carolina, and Pennsylvania received, respectively, 71, 55, and 54 candidate appearances  According to NPV's analysis of campaign appearances, the 2016 major party candidates for President and Vice President appeared at a total of 375 campaign events during the general election campaign, but they visited only 12 states; by NPV's calculation, 38 states and the District of Columbia were bypassed during the campaign  NPV advocates also maintain that the concentration of campaign resources, advertising, and candidate appearances in battleground states depresses turnout in "flyover" states, where candidates make few campaign appearances  The U S  Elections Project report, America Goes to the Polls, 2016 , appears to offer statistics consistent with this assertion, finding that the participation rate of the population eligible to vote in 14 battleground states was 65% in the 2016 presidential election, as opposed to comparable nationwide turnout of 60%  It also reports findings similar to those advanced by NPV: 95% of campaign visits during the 2016 campaign were made in battleground states, as was 99% of "ad spending " The NPV manifesto also cites a Brookings Institution study of the 2004 presidential election in support of its argument, stating, "Because the electoral college has effectively narrowed elections like the last one to a quadrennial contest for the votes of a relatively small number of states, people elsewhere are likely to feel that their votes don't matter " It should be noted, however, that a range of other political, social, cultural, and economic factors may also contribute to the disparity in turnout between battleground and non-battleground states  NPV further suggests that the disparity in participation may ultimately damage the ability to govern on the state and local levels and could have a negative impact on the legitimacy of public institutions: Diminished voter turnout in presidential races in non-battleground states weakens down-ballot candidates, thereby making the state even less competitive in the future  Governance—not just electioneering—is affected by the winner-take-all rule


Report 2:  National Popular Vote opponents oppose the compact on various grounds  Some argue that it is unconstitutional or "anticonstitutional," that is, contrary to the Founders' intentions and the spirit of the nation's fundamental charter  It is also asserted that NPV would solve few of the electoral college system's alleged problem issues and would create some of its own  Finally, some observers note that the NPV compact is an interstate compact as defined in Article I, Section 10, clause 3 of the Constitution, and as such would be subject to congressional approval  This issue is examined in greater detail in a separate section of this report  On the most fundamental philosophical basis, opponents might argue that the NPV compact violates one of the basic principles of majoritarian democracy: it does not require that candidates win a majority of the popular vote in order to gain the presidency  Rather, it would anoint as winner the ticket that gains more popular votes than any other  A majoritarian democracy, it may be argued, should require a majority in order to elect; it may be further noted that the existing system, by comparison, requires a majority in the electoral college  As one commentary noted only the strictest of majoritarians desire a purely majoritarian presidential election system, and those individuals should be deeply troubled by the prospect of plurality presidencies, which the NPVC [sic] expressly countenances  Indeed, the NPVC promises to create more difficulties and "misfires" in its own way than the Electoral College system its proponents so earnestly seek to replace  Further, opponents might ask how the NPV compact would function in the event of a multicandidate election, a phenomenon that recurs from time to time in U S  presidential elections  One commentator posited the following problematic scenario under such circumstances: Under the compact, one can easily imagine a multi-candidate race in which a candidate would win, say, a thirty-four percent plurality of the popular vote nationwide while losing in every state and D C  If all of the states and D C  were signatories to the compact, all the electoral votes in such a hypothetical race would be awarded contrary to the will of voters choosing electors (still not voting directly for President under this plan)  Would the United States accept a President who wasn't the choice of sixty-six percent of those voting, nor even the choice of a single state? The existing electoral college system, NPV skeptics might also assert, is a fundamental element in the federal constitutional arrangements established by the Constitution  Fearing "the tyranny of the majority," the Founders established a system of government that provides checks and balances designed to restrain the majority and secure minority rights  These principles are also embedded in the structure of federal elections: the Senate, the House of Representatives, and the presidency were deliberately provided with different terms of office and different electorates, and the states were given an important role in the federal election process  In particular, through the electoral college the United States elects its national Presidents and Vice Presidents in a state-based federal election  Successful nominees are compelled under this system to present a broad political vision that commands nation-spanning "concurrent majorities" and appeals to the great variety of Americans  As in the case of the Senate, less populous states are accorded a small numerical advantage by assignment of two at-large electors reflecting the Constitution's equal apportionment of Senators to each state regardless of its population  The NPV initiative, they could claim, would discard the Founders' intentions in favor of what they consider to be a flawed "majoritarian" presidency that would ill-serve a continent-spanning and profoundly diverse republic  Another criticism centers on the use of the NPV compact to effect a fundamental change in the presidential election process and a de facto amendment to the Constitution, but without following the procedures set out in Article V  Critics may note that NPV's founders admit their plan is an "end run" around the Constitution  Proponents might counter with the argument that Article V presents too high a hurdle for what they consider a necessary reform of the system  Opponents, however, could respond that the Founders intended the various supermajority requirements in Congress and the states to ensure that successful constitutional amendments enjoy broad national support  The bare majority of electoral votes required to implement NPV, they might note, meets none of these supermajority requirements  As one study critical of the NPV initiative concluded, because the use of an interstate compact "does not conform to the constitutional means of changing the original decisions of the Framers, NPV could not [therefore] be a legitimate innovation " A final argument on this line might be that one "end run" around the amendment process might lead to others, setting a dangerous precedent for similar efforts in the future  Opponents might note that the NPV would eliminate the electoral college system's multiplier effect generated by the winner-take-all or general ticket system used in 48 states and the District of Columbia, which tends to magnify the winning ticket's margin of victory, and is said to confer greater legitimacy to the victors  For instance, in 2016, Republican nominee Donald Trump's clear electoral vote majority of 304 votes (56 5% of the total), compared with Democratic nominee Hillary Clinton's 227 (42 2% of the total) could be said to reinforce and confirm his victory, notwithstanding Clinton's plurality of the popular vote (48 2%), compared with Trump's 46 1%  From a practical standpoint, NPV opponents might argue that the NPV would actually lead to an increase in contested election results and legal challenges in the states, as the political parties maneuver to claim every possible vote  They assert that the existing tabulation of popular votes within each state reduces contested results and recounts  Under NPV, the incentive to gain every vote would arguably lead to far broader disputes and widespread recounts at every level of election administration  As a Heritage Foundation study concluded Under the NPV … any suspicions necessitating a recount in even a single district would be an incentive for a national recount     The prospect of a candidate challenging "every precinct, in every county, in every state of the Union" should be abhorrent to anyone who witnessed the drama, cost, delay, and undue litigation sparked by the Florida recount of 2000  Opponents might also assert that the increased incidence of recounts would be further complicated by wide-ranging disparities in state procedures, potentially leading to prolonged periods of uncertainty following close presidential elections  Critics may also note that the NPV plan contains no "statute of limitations," unlike proposed constitutional amendments, for which Congress typically sets a seven-year ratification period  Where, critics may ask, is a similar time limit that would "sunset" the NPV compact, after which it would expire or return to "square one"? According to its website, NPV was launched on February 23, 2006; if it were a constitutional amendment proposed by Congress, it would have expired on February 23, 2013, since by the end of the customary seven-year deadline it was "ratified" by only eight states and the District of Columbia  By what reasoning, they might ask, should the NPV be exempt from the standards of timeliness and contemporaneity Congress customarily sets for constitutional amendments? Opponents might reject claims that, under NPV, campaign spending and candidate appearances would be spread and scheduled more widely, beyond the current concentration of time and resources in battleground states  They might argue that spreading campaign resources and candidate events in non-battleground states is a questionable argument to justify a fundamental change in the presidential election process  Campaign appearances and spending, they could assert, should not be considered to be a local economic stimulus package, nor are the amounts in question sufficient to make much of a difference in the economic condition of most states  As one critical analysis notes, "    the nation does not hold presidential elections to foster local economic development " Moreover, they might continue, it is equally dubious to assert that nominees will slight the concerns of citizens of the non-battleground states from which they draw their greatest support, or that concentrated campaigning in the battleground states somehow "disenfranchises" voters in others  In the modern era, a small percentage of voters actually attends an in-person presidential or vice presidential candidate appearance  Television (especially broadcast and cable TV news networks), social media, the internet, and newspapers—not the traditional rallies, torchlight parades, and handbills—dominate presidential election campaigns in the 21 st century  In addition to policy issues discussed previously, some observers have also raised questions related to the NPV initiative based on the fact that it is an interstate compact as defined in the Constitution  Others have questioned whether NPV might conflict with some provisions of the Voting Rights Act  The NPV initiative has been described by its supporters variously as a bill, a state-level statute, and an interstate compact  The latter reference necessitates an analysis of whether the initiative complies with the Compact Clause of the Constitution  An interstate compact—under the broadest understanding—is a contract between two or more consenting states  The Supreme Court has further suggested that an interstate compact often requires reciprocal commitments between the governments of two or more states, such that one state's commitment is conditioned on the action of another state and no state can unilaterally repeal its commitment  The use of interstate compacts predates the Constitution, as the Articles of Confederation contained a similar Compact Clause that provided a qualified prohibition on states entering into any agreements between them without the consent of Congress  The chaos resulting from the disunity created by the Articles of Confederation prompted the Framers of the Constitution generally to "impose more uniformity" among the states, resulting in a Constitution that wholly prohibits states from entering into any treaties, alliances, and federations  Nonetheless, the Constitution maintained the Articles of Confederation's qualified prohibition on interstate compacts and agreements, allowing states to enter into an interstate compact so long as the participating states seek the consent of Congress  Specifically, the Compact Clause provides that "No State shall, without the Consent of Congress     enter into any Agreement or Compact with another State     " While the historical rationale for Article I's qualified prohibition on interstate compacts is unclear, the Compact Clause generally reflects the view of the Framers that states should be able to work cooperatively together, as well as the concern that unchecked interstate alliances might threaten the harmony of the Union or the authority vested by the Constitution in the federal government  As the Supreme Court noted in Cuyler v  Adams , "By vesting in Congress the power to grant or withhold consent, or to condition consent on the states' compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority " The Compact Clause places no limits on what might be done through an interstate compact other than the requirement of congressional consent  In the early years of government under the Constitution, compacts were used almost exclusively to settle boundary disputes  Beginning with the establishment of the Port of New York Authority in 1921, however, compacts began to be used to address more complex, regional issues requiring intergovernmental cooperation  Some compacts are merely advisory in form, but others may be regulatory, with significant powers granted to multistate commissions  More recently, compacts have addressed such wide-ranging concerns as mental health treatment, law enforcement and crime control, education, driver licensing and enforcement, environmental conservation, energy, nuclear waste control, facilities operations, transportation, economic development, insurance regulation, placement of children and juveniles, disaster assistance, and pollution control  Approximately 200 interstate compacts are in effect today  Accordingly, the central legal issue with respect to the Compact Clause is whether a given interstate compact requires the consent of Congress  While a "literal" reading of the Compact Clause "would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States [emphasis added]," the Supreme Court has repeatedly rejected such a reading  In 1893, in Virginia v  Tenness e e , Justice Stephen Field, writing for the Court, contended that a broad reading of the Compact Clause would "embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects[,]" requiring congressional consent to agreements "which the United States can have no possible objection or have any interest in interfering with," as well as those that "may tend to increase     the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States     " Surmising that the Compact Clause could not have been intended to have such a broad reach, Justice Field concluded that the Clause prohibits states from entering into compacts without congressional consent only when the underlying compact is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States " The Supreme Court has subsequently reaffirmed Justice Field's "functional view of the Compact Clause," and, accordingly, generally where an agreement does not fall within the scope of the Compact Clause as envisioned by the Court in Virginia v  Tennessee , the agreement "will not be invalidated for lack of congressional consent " Whether the NPV initiative requires congressional consent under the Compact Clause first requires a determination as to whether NPV even constitutes an interstate compact  At times, its supporters have resisted framing the initiative as an interstate compact, arguably out of concern for running afoul of the Compact Clause's provisions  For example, Professor Akhil Amar has argued that because the initiative does not create a "new interstate governmental apparatus," the NPV should not be considered an interstate compact, as NPV compact signatory states are merely exercising power collectively that each state could exercise on its own  It is unclear, however, whether the creation of a new interstate governmental entity formed out of an agreement between two or more states is necessary, as opposed to sufficient, in order to deem an agreement as being an interstate compact subject to the Compact Clause  While the Supreme Court, in Northeast Bancorp , suggested that a "joint organization or body" formed out of an interstate agreement is a "classic indic[ium] of a compact," the Court has never adopted a definition of an interstate compact that solely rests on the existence of an interstate governmental body  Instead, the Court appears to have adopted a broader definition of what an interstate compact can entail  For example, in Virginia v  Tennessee , the Court noted that the words "compacts" and "agreements" are synonymous and "cover all stipulations affecting the conduct or claims of the parties " In other words, when two or more states enter into a stipulated agreement whereby one state agrees to perform an act in consideration for a reciprocal act by the other state(s), that agreement can be considered an interstate compact  This broad definition of a compact appears to encompass the NPV compact, as the initiative requires signatory states to agree mutually to appoint their electors to the winner of the national popular vote  Moreover, NPV binds each assenting state, as no member state can withdraw from it within six months or less of the end of a President's term  Because NPV prohibits states from freely "modify[ing] or repeal[ing] [the agreement] unilaterally" and requires "reciprocation" of mutual obligations, it appears that the initiative can be described as an interstate compact  Assuming the NPV initiative is an interstate compact, the question remains whether it is one that implicates the Compact Clause  The answer to that question primarily depends on whether NPV is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States  " In other words, the "test" for whether a particular interstate compact requires congressional consent is centrally concerned with vertical balances of power between the federal government and the states; namely, "whether the Compact enhances state power quoad the National Government " While the NPV arguably increases the political power of the states that have consented to it by ensuring that those states' desired outcome for the presidential election—the awarding of the majority of electoral votes to the presidential candidate supported by the majority of the voting populace—it is unclear how that increase in political power would be at the expense of the power of the federal government  After all, the Constitution provides the federal government with no role in determining the members of the electoral college  One scholar has suggested that the NPV initiative would lead to a vertical alteration of power by eliminating the possibility that the House of Representatives would resolve a presidential election in the absence of an electoral majority for a single candidate because it is premised on a majority of electoral votes going to a single candidate  The House of Representatives, however, has decided only two presidential elections in American history, and whether such an arguably hypothetical and de minimis diminishment of federal power through the NPV would be sufficient to require congressional consent under the Compact Clause is simply unresolved by the relevant case law  While the Supreme Court's case law interpreting the Compact Clause is centrally concerned with vertical federalism concerns (i e , the balance of power between the state and federal governments), the Court has recognized a potential secondary rationale suggested for the Compact Clause: to preserve the horizontal balance of powers among the various states  And horizontal federalism concerns could very well be implicated by the Compact Clause, as the provision appears to have been included in the Constitution out of concern both for the supremacy of the federal government and unity among the various states  Whether the NPV compact threatens the powers of nonconsenting states has been the subject of much debate among academics  Those in support of the initiative have contended that the nonconsenting states do not lose any power as a result of the NPV  According to this line of argumentation, even under the NPV, all states would retain their right to select the electors of their choosing, as nonmember state electors would still be counted in the electoral vote  Others, however, have pointed to the underlying premise of the NPV—to enhance the political power of more populous states in presidential elections—as evidence that the initiative diminishes the power of nonconsenting states  In other words, while non-compacting states would still retain the power to appoint electors, the influence that comes with that power would arguably be diminished because a state's role in the national election would be defined by its percentage of the popular vote and not by its percentage of electors, warranting congressional interest in approving a compact that effectuated such a change in national elections  Ultimately, however, whether the NPV actually threatens the power of nonconsenting states is a debate that remains active within academia but would likely be the source of considerable litigation if the initiative ever became effective  If congressional consent is needed for the NPV, that consent can take various forms  Usually congressional consent to an interstate compact takes the form of a joint resolution or act of Congress specifying its approval of the text of the compact and adding any conditions or provisions it deems necessary, often embodying the compact document  As with most congressional actions, consent to an interstate compact must occur with the approval of both houses and must be signed by the President before it becomes law  Rarely has the President vetoed or threatened to veto consent legislation by Congress  While congressional consent to an interstate compact is most often explicit, consent by Congress may also be implied by subsequent acts of Congress as "[a]n inference clear and satisfactory that Congress     intended to consent" to a compact may be sufficient  Congress may also delegate its power to approve a compact to a federal official so long as an "intelligible principle" against which approval can be measured is apparent  Ultimately, if congressional consent is truly needed for NPV to be effective, the initiative might have difficulty ever being enacted because the approval of both houses of Congress and the President would likely necessitate additional hurdles beyond the already challenging task of amassing support at the state level for the NPV  Beyond the legal issues raised with respect to the Compact Clause, the NPV initiative also potentially raises other broader constitutional concerns, including whether the states can functionally obviate the role of the electoral college through the NPV  Article II of the Constitution establishes that the election of the President should occur indirectly through the election by the electoral college  The choice of an indirect election for the President was a deliberate one by the Framers of the Constitution, because, while noting the importance that the "sense of the people" should influence the choice for President, they found it "equally desirable" for the "immediate election" of the President to be made by a body representative of distinct state interests and removed from the threat of unchecked majoritarianism  The result was that the Constitution established a presidential election process that was "manifestly nonmajoritarian," with the electoral college, a body established to represent the distinct views of each state, as the centerpiece of the election process  The central constitutional issue presented by the NPV, therefore, is whether the states, through an interstate compact, can functionally transform the presidential election system enshrined in the Constitution into a more majoritarian process  Supporters of the NPV argue that the Constitution provides the legal means for states to transform the presidential election system into one where the President is elected based solely on the result of the national popular vote  Specifically, clause 2 of Article II, Section 1 of the Constitution provides the states with the power to "appoint, in such Manner as the Legislature thereof may direct," the electors who represent the state in the electoral college  Facially, the Constitution's primary limitation on the power of a state to select its electors is the final number of electors awarded to each state  While perhaps an argument can be made that the structure, logic, and history of the Constitution place limits on the manner or method in which a state chooses its electors, the text of the Constitution simply does not impose any such limits  Supreme Court case law also supports reading Article II of the Constitution to broadly provide states with wide discretion as to the manner in which its electors are selected  Specifically, in 1892 in McPherson v  Blacker, a unanimous Supreme Court upheld a Michigan law providing for the election by individual congressional district of presidential electors against a challenge that the law violated Article II of the Constitution  In so holding, the Court placed great emphasis on a number of state laws that existed shortly after the ratification that provided a variety of "modes of choosing the electors," including selection by the legislature itself, by a "vote of the people for a general ticket," "by vote of the people in districts," or by some permutation of those methods  Viewing this evidence together with the text of Article II and the historical evidence from the Constitutional Convention led the Court to broadly conclude state legislatures have "conceded plenary power     in the matter of the appointment of electors," allowing the Michigan law to stand  Applying McPherson to the case of the NPV, the argument can and has been made that if the states have plenary power with respect to the manner of how electors are appointed, the power necessarily allows states to select electors in line with the results of the national popular vote  More recently, supporters of the NPV have relied on the Supreme Court's 2015 ruling in Arizona Legislature v  Arizona Independent Redistricting Commission (AIRC) —which held that the State of Arizona had wide discretion under the Elections Clause of the Constitution to select the method by which the state provided for redistricting —to argue that the states retain broad discretion in selecting electors under Article II, which uses similar language to the provision interpreted in AIRC  Others have argued that the structure of the Constitution and historical evidence suggest that the states do not have such vast discretion in appointing electors as to functionally transform the election for President into a national popular referendum  As noted elsewhere in this report, the electoral college was created by the Framers to ensure that states with the least population retained power in the selection of the President, providing a check against domination by the most populous states  The electoral college, being a product of the choices of individual state legislatures, was envisioned by the Framers as a body that would represent the specific interests of a given state, as opposed to the undifferentiated nation at large  Accordingly, it may be argued that allowing the most populous states to collude to ensure that the national popular vote, as opposed to the wishes of an individual state, dictates the results of a state's slate of electors, could arguably be irreconcilable with the Framers' intentions with respect to the electoral college  As such, for those who find the NPV compact constitutionally suspect under Article II, McPherson 's broad pronouncements about the nature of a state's power to appoint electors should be viewed in the context of that particular case, where the state of Michigan was attempting to appoint its electors based on the votes of an individual district in the state, as opposed to the state as a whole  In contrast to the law at issue in McPherson , with NPV, there appears to be no evidence contemporaneous with the ratification of the Constitution of a state selecting its electors in accordance with the results of the national popular vote  Unlike the State of Michigan in McPherson , an NPV state's electors might not be a product of the views of the state at the time of the election, but instead would reflect national popular sentiment about who should be the President  Moreover, the Supreme Court, in interpreting arguably analogous language from Article I of the Constitution allowing states to regulate the manner of the selection of the Members of the House of Representatives and Senate, concluded that the states cannot exercise their delegated authority in a way that would "effect a fundamental change in the constitutional structure " The question that remains is whether the Court in a future case challenging the NPV compact would interpret the states' authority under Article II to appoint electors to be broad enough to allow the President to be selected as a result of the national popular vote, a question that, given the lack of any precise precedent respecting the constitutionality of the NPV compact under Article II, will likely remain unresolved until such time  Other critics claim the NPV compact might violate Sections 2 and 5 of the Voting Rights Act (VRA)  Writing in Columbia Law Review , David Gringer invokes the voting power theory  He argues that the plan conflicts with Section 2 of the VRA because moving from "a state-based [vote] to a national popular vote dilutes the voting strength of a given state's minority population by reducing its ability [voting power] to influence the outcome of presidential elections " Gringer also asserts that the NPV compact may violate Section 5 of the act  In 2013, however, the U S  Supreme Court invalidated Section 4(b) of the VRA, which contained a formula prescribing which states and jurisdictions with a history of discrimination were required to obtain prior approval or "preclearance" under Section 5 before changing any voting standard, practice, or procedure  Although the Court invalidated only the coverage formula in Section 4, by extension, Section 5 has been rendered currently inoperable  Prior to the Supreme Court ruling, Gringer argued that the NPV compact would qualify as a covered practice under Section 5, and that the legislatures of all the "covered" states would have been required to obtain preclearance before implementing the compact  Responding to this point, National Popular Vote Inc  noted the following: The National Popular Vote bill manifestly would make every person's vote for President equal throughout the United States in an election to fill a single office (the Presidency)  It is entirely consistent with the goal of the Voting Rights Act  There have been court cases under the Voting Rights Act concerning contemplated changes in voting methods for various representative legislative bodies     However, these cases do not bear on elections to fill a single office (i e , the Presidency)  In 2012, the Justice Department's Civil Rights Division specifically declined to challenge California's accession to the NPV compact on VRA grounds  The states' authority to appoint electors by any method their legislatures choose is not absolute  Federal court decisions have struck down state laws concerning appointment of electors that were found to be in violation of the Fourteenth Amendment's guarantee of equal protection: Although Clause 2 (of Article II, Section 1 of the Constitution) seemingly vests complete discretion in the states, certain older cases had recognized a federal interest in protecting the integrity of the process  Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector     [I]n Oregon v  Mitchell (42 U S  112 (1970)), the Court upheld the power of Congress to reduce the voting age in presidential elections and to set a thirty-day durational residency period as a qualification for voting in presidential elections  Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v  Rhodes , (393 U S  20 1968)) is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment may override state practices that violate that Amendment and may substitute standards of its own  Critics of the electoral college system have sought direct election of the President and Vice President without success for more than two centuries  The NPV initiative represents a novel effort to achieve this goal by use of an interstate compact that would circumvent the stringent requirements necessary for the proposal and ratification of constitutional amendments  Since its inception in 2006, NPV has achieved a degree of success: 14 states and the District of Columbia, controlling a total of 189 electoral votes, have joined the compact since 2008  Progress has arguably been sporadic, however, notwithstanding active campaigning by National Popular Vote Inc  Over the course of more than a decade, NPV has heretofore failed to develop a sustained momentum toward its stated goal of states controlling 270 electoral votes  The action of three states in joining NPV to date in 2019 marks the most activity in a single year since 2008; it remains to be seen whether this trend will continue  To date, certain Democratic-leaning states have joined the compact  The arguable lack of support in Republican-controlled state legislatures raises questions about further accessions to the compact in the immediate future, particularly given the fact that the GOP controlled both legislative chambers in 30 states following the 2018 elections  To date, while the NPV initiative has generated interest among supporters of direct popular election of the President, it does not appear to have gained widespread awareness among the public at large  The findings of the March 27, 2019, Politico/Morning Consult survey cited earlier in this report arguably suggest that greater public knowledge of NPV might spur popular support for the compact  This might then contribute to further momentum if additional states were to join, particularly populous ones like Florida (29 electoral votes), Georgia (16 electoral votes), and Ohio (18 electoral votes) where the compact was under active consideration in 2019  Under these circumstances, proponents might be energized and encouraged by a sense of progress for the initiative  At the same time, NPV opponents could be expected to coalesce around the issues identified earlier in this report, and renew and increase their efforts in defense of the electoral college system  The activities of both might ultimately bring the NPV initiative to the more immediate attention of Congress 

ground_truth: Since 1977, statutory thresholds have effectively constrained the President's ability to close or realign major military installations in the United States. Congress has instead periodically granted temporary authorities—known as a Base Realignment and Closure (BRAC)—that have established independent commissions for the review and approval of basing changes submitted by the Secretary of Defense. These unique and transient authorities last expired on April 16, 2006. There have been five rounds of base closures: 1988, 1991, 1993, 1995, and 2005. Though Congress has periodically adjusted the BRAC process to account for lessons learned, the modern framework has remained generally consistent with earlier rounds, and includes establishment of an independent commission; reliance on objective and uniform criteria; Government Accountability Office (GAO) review and certification of Department of Defense (DOD) data; deliberations designed to be transparent that include open hearings, solicitation of feedback, installation visits, and data available for public review; and requirement that the final list of closure and realignment recommendations be accepted or rejected in their entirety. Congress has defined BRAC selection criteria in statute, thus requiring the Secretary to prioritize military value over cost savings. Additionally, Congress has required the Secretary to align the Department's recommendations with a comprehensive 20-year force structure plan. The commission may modify, reject, or add recommendations during its review before forwarding a final list to the President. After receiving the Commission's list of recommendations, the President may either accept the report in its entirety or seek to modify it by indicating disapproval and returning it to the commission for further evaluation. If the President accepts the commission's recommendations, they are forwarded to Congress. BRAC implementation begins by default unless Congress rejects the recommendations in their entirety within 45 days by enacting a joint resolution. During the implementation phase, DOD is required to initiate closures and realignments within two years and complete all actions within six years. The BRAC process represents a legislative compromise between the executive and legislative branches wherein each shares power in managing the closure and realignment of military bases. The imposition of an independent, third-party mediator was intended to insulate base closings from political considerations by both branches that had complicated similar actions in the past. This report provides background on the development of BRAC, describes its major elements and milestones, and outlines issues frequently cited in the context of new rounds, such as potential savings.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.

Report 1: The U S  Constitution does not clearly specify how military bases should be managed  Article II, Section 2, appoints the President as the commander-in-chief, with the implied power to deploy, and redeploy, the armed forces as necessary for national defense  In common practice, this has included the authority to create and close military installations needed to accommodate and train personnel under the President's command  However, Article I, Section 8, charges Congress with the responsibility to raise armies, maintain a Navy, and regulate the militia  Through annual authorization and appropriation legislation, Congress legislates policy for managing DOD real property assets and funds the construction, maintenance, operation, and disposal of military infrastructure  Throughout most of American history, the President has exercised broad, relatively unchallenged authority for opening, closing, or realigning military installations  Congress largely deferred to the Executive branch primarily because the President, as commander-in-chief, is empowered with the responsibility of deploying military forces  Prompted by large-scale closures of World War II era infrastructure during the 1960s and 1970s, Congress enacted legislation in 1977 that effectively limited the Executive branch's ability to close or realign major military installations  The new statute, later codified as 10 U S C  2687 (Section 612 of the Military Construction Authorization Act of 1978, P L  95-82 ), generally required DOD to conduct comprehensive and lengthy assessments of major basing decisions as part of a congressional report-and-wait process  These assessments could be challenged in court on environmental grounds or on questions related to their sufficiency, further lengthening delays  The new legislation effectively halted DOD's ability to close or realign domestic bases of significant size  In the decade that followed the passage of 10 U S C  2687, congressional pressure grew to accommodate DOD basing priorities  By 1988, ongoing negotiations between the Secretary of Defense and the House and Senate Armed Service Committees led to new legislation ( P L  100-526 ) that authorized a limited number of base closures based on the oversight of an independent panel  Though later modified, the effort marked the beginning of the first Base Realignment and Closure (BRAC) process, which was intended to insulate base closings from considerations such as favoritism or other political interference  Widely considered a success, the 1988 BRAC legislation was taken up again and modified in succeeding BRAC rounds; first in 1991, 1993, and 1995; and again in 2005  The modern BRAC process refers to a temporary authority that amends the Defense Base Closure and Realignment Act of 1990 ( P L  101-510 ), hereinafter referred to as the Base Closure Act , and features a framework of elements that entrusts an independent commission with certifying closure and realignment recommendations made by the Secretary of Defense  In general, the process has required the Secretary to submit a list of military installations recommended for closure or realignment to an independent, bipartisan BRAC commission  After analyzing the Secretary's recommendations, the commission may accept, reject, or modify the list  Upon completing its review, the commission forwards its final findings and recommendations to the President  Upon acceptance of commission's recommendations, the President then submits them to Congress  If the President does not submit the recommendations to Congress within the timeframe required under the Base Closure Act, the BRAC process is terminated  Upon receipt of the report from the President, Congress has the opportunity to disapprove of the recommendations in toto through the enactment of a joint resolution  The hallmarks of this framework include establishment of an independent commission whose members are appointed by the President, in consultation with congressional leadership (and the advice and consent of the Senate); reliance on objective and uniform criteria for evaluating basing recommendations; GAO review and certification of DOD data; deliberations that include open hearings, solicitation of feedback, installation visits, and data available for public review; requirement that the commission's final list of closure and realignment actions be accepted or rejected in its entirety; and presidential and congressional off-ramps that would terminate the BRAC process when certain conditions are not met  The timeline to complete an entire BRAC round has varied; however, the most recent one conducted in 2005 took approximately 10 years, from authorization to completion (end of the six-year BRAC implementation period)  Key milestones of a typical BRAC timeline include DOD force structure plan, infrastructure inventory, and analysis of options (up to four years); nomination and confirmation of BRAC commissioners; DOD submission of BRAC recommendations (and associated reports) to the commission; commission deliberations (typically four months); final report sent to the President for approval; 45-day deadline for Congress to reject recommendations in their entirety (Joint Resolution of Disapproval) or allow implementation to begin; DOD implementation (two years to begin; six years to complete); and DOD disposal of real property (indeterminate)  BRAC is often characterized as a cost efficiency measure that enables DOD to more effectively manage its real property assets by allowing it to shed excess infrastructure, but historically, potential costs and savings have been a consideration that have ranked below military value  No BRAC round has established cost savings targets, floors, or ceilings  During BRAC rounds in 1991, 1993, and 1995, Congress required the Secretary of Defense to develop and report a set of objective selection criteria that would be used for identifying bases for closure and realignment  For the 2005 round, Congress amended the BRAC statute to require the Secretary to regard military value (defined below) as the primary consideration  Other factors, such as potential costs and savings, were explicitly categorized as lower priority  Because the amended legislative language reflected longstanding DOD policy, the 2005 BRAC criteria appear almost identical when compared with previous versions, with additional language added for emphasis or included for explanatory examples  The excerpt below indicates the 2005 BRAC selection criteria  Emphasized text (in italics) represents new language not included as part of the 1995 criteria  SEC  2913  SELECTION CRITERIA FOR 2005 ROUND  (a) FINAL SELECTION CRITERIA —The final criteria to be used by the Secretary in making recommendations for the closure or realignment of military installations inside the United States under this part in 2005 shall be the military value and other criteria specified in subsections (b) and (c)  (b) MILITARY VALUE CRITERIA —The military value criteria are as follows: (1) The current and future mission capabilities and the impact on operational readiness of the total force of the Department of Defense, including the impact on joint warfighting, training, and readiness  (2) The availability and condition of land, facilities, and associated airspace (including training areas suitable for maneuver by ground, naval, or air forces throughout a diversity of climate and terrain areas and staging areas for the use of the Armed Forces in homeland defense missions) at both existing and potential receiving locations  (3) The ability to accommodate contingency, mobilization, surge, and future total force requirements at both existing and potential receiving locations to support operations and training  (4) The cost of operations and the manpower implications  (c)  OTHER CRITERIA —The other criteria that the Secretary shall use in making recommendations for the closure or realignment of military installations inside the United States under this part in 2005 are as follows: (1) The extent and timing of potential costs and savings, including the number of years, beginning with the date of completion of the closure or realignment, for the savings to exceed the costs  (2) The economic impact on existing communities in the vicinity of military installations  (3) The ability of the infrastructure of both the existing and potential receiving communities to support forces, missions, and personnel  (4) The environmental impact , including the impact of costs related to potential environ mental restoration, waste management, and environmental compliance activities  The transfer and disposal of DOD real property made available following the implementation of a BRAC round is a complex process that may extend for years beyond the initial six-year implementation window  Disposal may be delayed or otherwise affected by the participation of local and state communities and the degree to which environmental remediation by federal authorities is necessary  The graph below shows the total acreage from previous BRAC rounds yet to be disposed  The Base Closure Act authorizes a variety of conveyance mechanisms not otherwise available for the transfer and disposal of federal property, a process typically performed by the General Services Administration (GSA)  Under a BRAC, conveyance authority is delegated from GSA, through the Secretary of Defense to the various military departments, which receive special approval to supersede GSA regulations with BRAC specific regulations  The primary difference between the routine disposal of federal property and real property conveyed under a BRAC is the role of local communities  Under normal (non-BRAC) circumstances, the General Services Administration (GSA) is directly responsible for disposing of any surplus federal real property, which includes defense property  A military department in possession would, for example, declare property as excess to its needs and turn over the administration of a site to the GSA  The GSA would then follow a number of consecutive steps for disposal of federal property laid out in statute  It would first offer the excess property to other federal agencies  If none expressed an interest, the excess property would be declared surplus   The GSA would then offer the surplus property to state or local governments and non-profits that might use it for a public benefit ( public benefit conveyance) , such as a homeless shelter or medical center  Finally, if the property has neither been transferred nor conveyed in the previous steps, the surplus property would be offered for sale to the public  Under a BRAC, local communities can significantly affect the BRAC property transfer and disposal decisions, which are managed by the Secretary of the responsible military department  Once approved for closure, communities around an installation typically organize a Local Redevelopment Authority (LRA) for the purpose of creating and executing a redevelopment plan for the property  While the plan is not binding on DOD, the Department has been statutorily directed to give the plan considerable weight  DOD makes economic development grants and technical support available through its Office of Economic Adjustment (OEA) to assist LRAs with the process  In recent BRAC rounds, Congress has authorized a special transfer authority that has permitted DOD to transfer title to property at less than fair market value, or even at no cost, if the LRA agrees to certain conditions designed to create employment at the former defense facility  This has been referred to as an Economic Development Conveyance (EDC)  DOD has asserted that savings generated from BRAC are generally the result of avoiding the cost of retaining and operating unneeded infrastructure, with upfront costs eventually offset by annual savings  Between FY2012 and FY2018, the Department consistently argued for a new BRAC, asserting that "absent another BRAC round, the Department will continue to operate some of its installations sub-optimally as other efficiency measures, changing force structure, and technology reduce the number of missions and personnel " Emphasizing the potential cost savings, DOD has suggested a new "efficiency-focused BRAC" could save the Department billions of dollars annually: "Savings from BRAC rounds are real and substantial  The last five BRAC rounds are collectively saving the Department $12B annually  A new efficiency-focused BRAC could save the Department an additional ~$2B annually (based on the '93/'95 rounds) " In its ongoing series of BRAC-related reports, the GAO has noted the unreliability of DOD cost savings estimates  In 2013, GAO concluded that, though the Department had achieved annual recurring savings as the result of the 2005 round, visibility into the outcome has been limited due to missing and inconsistent recordkeeping  Similar studies have raised questions about the data DOD has used to predict and monitor BRAC effectiveness, long-term savings, and outcomes  For example "    the services did not develop baseline operating costs before implementing the BRAC recommendations, which would have enabled it to determine whether savings were achieved " "    We found that DOD's process for providing the BRAC commission with cost and savings estimates was hindered by underestimating recommendation-specific requirements and that DOD did not fully anticipate information technology requirements for many of the recommendations " "The department cannot provide documentation to show to what extent it reduced plant replacement value or vacated leased space as it reported in May 2005 that it was intended to do     In addition, DOD bundled multiple closures     thus limiting visibility into the estimated costs and savings for individual closures and realignments " "    DOD has not reported to Congress how the cleanup of emerging contaminants, especially certain perfluorinated compounds, at installations closed under BRAC will significantly increase the estimated (BRAC) cleanup costs " "    We found that OSD (Office of the Secretary of Defense) did not have a fully developed method for accurately collecting information on costs, savings, and efficiencies achieved specifically from joint basing, and that OSD had not developed a plan to guide joint bases in achieving cost savings and efficiencies    " "    DOD has not committed to take action on some of our recommendations related to implementing any future BRAC rounds, such as improving DOD's ability to estimate potential liabilities, and savings to achieve desired outcomes " In its final report to the President, the 2005 BRAC commission noted DOD's initial estimate of savings had been "vastly overestimated," and suggested that the Department had claimed savings that were "not truly savings in the commonly understood sense of the term " Reflecting on the quality of cost estimates and savings associated with 2005 BRAC round, Anthony Principi, Chairman of the 2005 Defense Base Closure and Realignment Commission, has suggested opportunities exist for the DOD to improve its analysis by adopting more consistent accounting practices and inclusive metrics: To start, DoD has to do a better job estimating the true cost of any closure or realignment     Second, the cost of base realignment actions (COBRA) accounting procedure, used by DoD as a basis of comparison among scenarios, should include cost estimates for environmental restoration not just "clean to current use" standards  In addition, COBRA or some other cost evaluation process should also include transportation and infrastructure costs and burden sharing with the federal government     In addition to refining DOD accounting metrics, some observers have suggested congressional visibility into BRAC cost and long-term effectiveness could be improved by amending the process to require the Department to disclose how closure and realignment recommendations meet expected cost saving and reduced infrastructure targets  A BRAC process is the chief means by which DOD disposes of excess infrastructure  Each year between 2013 and 2017, the Department requested a new BRAC round as a means of realizing greater efficiency and reducing excess infrastructure  It has also attempted to allay concerns related to the 2005 BRAC experience - marked by unexpectedly high costs and complexity - by emphasizing cost savings and efficiencies rather than force transformation  In April 2016, DOD submitted to the House Armed Services Committee an I nfrastructure C apacity R eport (interim version) that assessed 22% of the Department's base infrastructure excess to its needs  The methodology used in the report—required by Section 2815 of the National Defense Authorization Act (NDAA) for FY2016 (P L  114-92)—remained consistent with excess capacity reports submitted prior to the 1998 and 2005 BRAC rounds round  The Department stated its purpose for obtaining "a sense of excess and whether excess remains after various changes, such as (prior) BRAC or force structure reductions " A final infrastructure capacity report, submitted to Congress in October 2017, modified the original excess capacity estimate to 19%  The Department concluded its infrastructure capacity analysis by arguing it had established sufficient justification for a new BRAC round, a process that would allow it to more effectively dispose of excess infrastructure and manage remaining real property assets  The Department believes we have addressed all congressional concerns     The time to authorize another BRAC round is now  The BRAC process requires considerable time to analyze and develop recommendations, have those recommendations reviewed by the independent BRAC Commission, and then implemented over a six-year period of time  The longer authorization is delayed, the longer the Department will be forced to expend valuable resources on unnecessary facilities instead of weapons systems, readiness, and other national security priorities  Critics of the Department's methodology for estimating excess infrastructure have asserted it includes unreasonable research assumptions and metrics, undermining the basis for DOD's conclusion  For example, observers have cited the report's reliance on Cold War baseline values to establish excess capacity, inconsistent application of existing metrics for measuring capacity shortfalls, and overly broad categorization schemes  Some observers have also cited longstanding data management challenges that continue to affect the Department's ability to measure current excess facility inventory and utilization rates  Others have noted the dearth of data that support DOD claims related to BRAC effectiveness and the disposal of excess property  During a news briefing on the FY2019 defense budget, Undersecretary of Defense (Comptroller) David L  Norquist noted that the Department had declined to propose a BRAC round that year, stating that it would work instead to focus on internal reforms while preparing for a financial audit  And so, I think we're looking at doing two things, going forward  One is, working with Congress to find common areas where we can make reforms and changes that don't create the same types of obstacles  The other is that we are undergoing a financial-statement audit that includes a look at property, and assets and investments and improving the accuracy of the data behind it  And as a view of being able to take advantage of the data coming out of that process, to help us make better decision-making on real property  But, yes, you are correct, there is not (a) request for another BRAC round in this budget  In testimony before the Senate Appropriations Committee Subcommittee on Military Construction, Veterans Affairs, and Related Agencies, Lucian Niemeyer, Assistant Secretary of Defense for Energy, Installations and Environment, indicated DOD would be working in FY2019 to improve its excess infrastructure accounting processes and demolish unneeded infrastructure: In lieu of another request for legislation in FY 2019 to authorize an additional Base Realignment and Closure (BRAC) round, we will review our facilities, to include facility usage optimization review to ensure we have a better accounting of excess infrastructure  We also have proposed for FY 2019 increased efforts to demolish unneeded or obsolete facilities over the course of this year  The 2005 BRAC round was unique among all previous rounds due to its relative size, scope and complexity  (See Figure 2 for comparison of major and minor BRAC actions between rounds ) Colloquially called "the mother of all BRACs," the objectives of the 2005 round were primarily about transforming military infrastructure; however, unanticipated expenses have played a role in shaping subsequent congressional views of the BRAC process and, according to many observers, dampened support for consideration of a new round  Savings estimates submitted during the 2005 round were overvalued by as much as 67%, according to GAO analysis, with one-time implementation costs rising from $21 to $35 1 billion  GAO found that the $14 1 billion increase was due primarily to the rising cost of new construction associated with subsidiary projects not included in the original BRAC implementation plan  Referring to the implementation of the 2005 round, Assistant Secretary Niemeyer, noted, "BRAC legislation effectively limited the ability of Congress to oversee BRAC implementation costs and the Department made deliberate decisions to use BRAC implementation as a recapitalization tool, expanding facility requirements and associated costs " To address congressional concerns about spiraling costs in new BRAC rounds, DOD has periodically proposed legislative language that would constrain the Secretary's ability to recommend BRAC actions that would not yield savings within 20 years and to emphasize recommendations that would yield net savings within five years  Each year, Congress appropriates funding for the Department of Defense Base Closure Account, part of the Military Construction Defense-Wide appropriation  With no BRAC round authorized or underway, the primary purpose of continuing BRAC appropriations is to fund the environmental cleanup and caretaker functions at bases that were closed under prior rounds (see Figure 3 )  In FY2020, the Trump Administration has requested $278 5 million for BRAC continuing environmental and caretaker costs, with $158 3 million provided for the Navy (57%), $66 1 million for the Army (24%), and $54 million for the Air Force (19%)  The total request represents a $63 million decrease (19%) from FY2019 enacted levels ($342 million)  In FY2018, Congress urged DOD to accelerate environmental remediation at BRAC sites  In report language, appropriators stated that additional funds were provided to speed environmental remediation at installations closed under previous rounds  Accelerated cleanup —The agreement includes additional funding to accelerate environmental remediation at installations closed during previous Base Realignment and Closure (BRAC) rounds  Priority should be given to those sites with newly identified radiological cleanup cost  There are many factors hindering the cleanup of BRAC sites  However, strategic investments can lead to quicker clean-ups and faster turnover of DOD property to the local community  Therefore, the Department is directed to submit to the congressional defense committees a spend plan for the additional BRAC funds not later than 30 days after enactment of this Act  Congressional authorizers and appropriators have regularly inserted language into annual defense legislation that would disallow the use of funds for the purpose of a new BRAC round  In FY2019, for example, though DOD did not propose a BRAC, authorizers inserted language into the annual NDAA that prohibited a new round: SEC  2703  Prohibition on Conducting Additional Base Realignment and Closure (BRAC) Round  Nothing in this Act shall be construed to authorize an additional Base Realignment and Closure (BRAC) round  A similar provision was included in the final FY2019 defense appropriations bill: SEC  8122  None of the funds made available by this Act may be used to propose, plan for, or execute a new or additional Base Realignment and Closure (BRAC) round  In 2017, Members in both chambers proposed legislation that would have authorized a new round of base closures  Though no legislation for a full BRAC was enacted, a provision included the following year in the final FY2019 NDAA  Under the new scenario described by Section 2702 of the John S  McCain National Defense Authorization Act for Fiscal Year 2019 ( H R  5515 , P L  115-232 ), BRAC-like actions are authorized within the confines of a state based on the recommendation of the governor and support of local communities affected by the proposed actions  Unlike a traditional BRAC process, the new authorities would forgo the creation of an independent review panel  The Secretary of Defense is, instead, required to deliver a report of planned BRAC actions to congressional defense committees and, following a 90-day waiting period, begin implementation  For details, please refer to "In-State BRAC" in Appendix A of this report  The BRAC related legislative proposals above illustrate the flexibility Congress has for amending or adopting the template of past BRAC processes that DOD has called "the only fair, objective, and comprehensive process to achieve these goals (eliminating excess infrastructure) " Congress may consider whether future legislative proposals for base closures and realignments will adopt the lessons learned from previous rounds while retaining the basic framework, or fundamentally alter the process  No BRAC legislation has so far been proposed in the 116 th Congress  Additionally, the Department has asserted that it does not intend to use the new BRAC-like authorities authorized by Section 2702 of the FY2019 NDAA  To date, DOD has received no state requests under this authority  Appendix A  Legislative References BRAC Authorizing Legislation 1988 Round The Defense Authorization Amendments and Base Closure and Realignment Act, enacted October 24, 1988 (P L 100-526) 1991, 1993, 1995 Rounds National Defense Authorization Act for Fiscal Year 1991, enacted November 5, 1990 (P L  107-107, Base Closure and Realignment Act of 1990, Title XXIX) 2005 Round National Defense Authorization Act for Fiscal Year 2002, ( P L  101-510 ; amended the Defense Base Closure and Realignment Act of 1990 ( P L  101-510 ) 10 U S C  2687, 10 U S C  993 Summary In 1977, Congress enacted 10 U S C  2687, the first statutory restriction on the President's ability to close or realign military installations  Amended over the years, the statute has retained its essential elements, establishing procedures the Secretary of Defense must follow before closing a military installation where a threshold number (currently 300) of civilian personnel are authorized to be employed, or realigning an installation that involves a reduction by more than 50% (or 1,000) of civilian workers  A more recent statute, 10 U S C  993, introduced additional reporting requirements that would restrict the Secretary's ability to realign installations if the plan would affect more than 1,000 assigned members of the Armed Forces  In-State BRAC Section 2702 of the John S  McCain National Defense Authorization Act for Fiscal Year 2019 ( H R  5515 , P L  115-232 ) authorizes new in-state BRAC authorities  Text of the provision is included below in its entirety  SEC  2702  ADDITIONAL AUTHORITY TO REALIGN OR CLOSE CERTAIN MILITARY INSTALLATIONS  (a) Authorization —Notwithstanding sections 993 or 2687 of title 10, United States Code, and subject to subsection (d), the Secretary of Defense may take such actions as may be necessary to carry out the realignment or closure of a military installation in a State during a fiscal year if— (1) the military installation is the subject of a notice which is described in subsection (b); and (2) the Secretary includes the military installation in the report submitted under paragraph (2) of subsection (c) with respect to the fiscal year  (b) Notice From Governor of State —A notice described in this subsection is a notice received by the Secretary of Defense from the Governor of a State (or, in the case of the District of Columbia, the Mayor of the District of Columbia) in which the Governor recommends that the Secretary carry out the realignment or closure of a military installation located in the State, and which includes each of the following elements: (1) A specific description of the military installation, or a specific description of the relevant real and personal property  (2) Statements of support for the realignment or closure from units of local government in which the installation is located  (3) A detailed plan for the reuse or redevelopment of the real and personal property of the installation, together with a description of the local redevelopment authority which will be responsible for the implementation of the plan  (c) Response to Notice — (1) Mandatory response to governor and congress —Not later than 1 year after receiving a notice from the Governor of a State (or, in the case of the District of Columbia, from the Mayor of the District of Columbia), the Secretary of Defense shall submit a response to the notice to the Governor and the congressional defense committees indicating whether or not the Secretary accepts the recommendation for the realignment or closure of a military installation which is the subject of the notice  (2) Acceptance of recommendation —If the Secretary of Defense determines that it is in the interests of the United States to accept the recommendation for the realignment or closure of a military installation which is the subject of a notice received under subsection (b) and intends to carry out the realignment or closure of the installation pursuant to the authority of this section during a fiscal year, at the time the budget is submitted under section 1105(a) of title 31, United States Code, for the fiscal year, the Secretary shall submit a report to the congressional defense committees which includes the following: (A) The identification of each military installation for which the Secretary intends to carry out a realignment or closure pursuant to the authority of this section during the fiscal year, together with the reasons the Secretary of Defense believes that it is in the interest of the United States to accept the recommendation of the Governor of the State involved for the realignment or closure of the installation  (B) For each military installation identified under subparagraph (A), a master plan describing the required scope of work, cost, and timing for all facility actions needed to carry out the realignment or closure, including the construction of new facilities and the repair or renovation of existing facilities  (C) For each military installation identified under subparagraph (A), a certification that, not later than the end of the fifth fiscal year after the completion of the realignment or closure, the savings resulting from the realignment or closure will exceed the costs of carrying out the realignment or closure, together with an estimate of the annual recurring savings that would be achieved by the realignment or closure of the installation and the timeframe required for the financial savings to exceed the costs of carrying out the realignment or closure  (d) Limitations — (1) Timing —The Secretary may not initiate the realignment or closure of a military installation pursuant to the authority of this section until the expiration of the 90-day period beginning on the date the Secretary submits the report under paragraph (2) of subsection (c)  (2) Total costs —Subject to appropriations, the aggregate cost to the government in carrying out the realignment or closure of military installations pursuant to the authority of this section for all fiscal years may not exceed $2,000,000,000  In determining the cost to the government for purposes of this section, there shall be included the costs of planning and design, military construction, operations and maintenance, environmental restoration, information technology, termination of public-private contracts, guarantees, and other factors contributing to the cost of carrying out the realignment or closure, as determined by the Secretary  (e) Process for Implementation —The implementation of the realignment or closure of a military installation pursuant to the authority of this section shall be carried out in accordance with section 2905 of the Defense Base Closure and Realignment Act of 1990 (title XXIX of P L  101-510 ; 10 U S C  2687 note) in the same manner as the implementation of a realignment or closure of a military installation pursuant to the authority of such Act  (f) State Defined —In this section, the term ``State'' means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands  (g) Termination of Authority —The authority of the Secretary to carry out a realignment or closure pursuant to this section shall terminate at the end of fiscal year 2029  Appendix B  BRAC Acreage Disposal Status, By State


Report 2: This report provides background information and issues for Congress regarding China's actions in the South China Sea (SCS) and East China Sea (ECS), with a focus on implications for U S  strategic and policy interests  Other CRS reports focus on other aspects of maritime territorial disputes involving China  The issue for Congress is how the United States should respond to China's actions in the SCS and ECS—particularly China's island-building and base-construction activities in the Spratly Islands in the SCS—and to China's strengthening position in the SCS  A key oversight question for Congress is whether the Trump Administration has an appropriate strategy—and an appropriate amount of resources for implementing that strategy—for countering China's "salami-slicing" strategy or gray zone operations for gradually strengthening its position in the SCS, for imposing costs on China for its actions in the SCS and ECS, and for defending and promoting U S  interests in the region  Decisions that Congress makes on these issues could substantially affect U S  strategic, political, and economic interests in the Indo-Pacific region and elsewhere  In this report, the term China's near-seas region refers to the SCS, ECS, and Yellow Sea  The term first island chain refers to a string of islands, including Japan and the Philippines, that encloses China's near-seas region  The term second island chain , which reaches out to Guam, refers to a line that can be drawn that encloses both China's near-seas region and the Philippine Sea between the Philippines and Guam  The term exclusive economic zone ( EEZ ) dispute is used in this report to refer to a dispute principally between China and the United States over whether coastal states have a right under international law to regulate the activities of foreign military forces operating in their EEZs  Although maritime territorial disputes in the SCS and ECS involving China and its neighbors may appear at first glance to be disputes between faraway countries over a few rocks and reefs in the ocean that are of seemingly little importance to the United States, the situation in the SCS and ECS can engage U S  interests for a variety of strategic, political, and economic reasons, including but not necessarily limited to those discussed in the sections below  The SCS, ECS, and Yellow Sea border three U S  treaty allies—Japan, South Korea, and the Philippines  In addition, the SCS and ECS (including the Taiwan Strait) surround Taiwan, regarding which the United States has certain security-related policies under the Taiwan Relations Act ( H R  2479 / P L  96-8 of April 10, 1979), and the SCS borders Southeast Asian nations that are current, emerging, or potential U S  partner countries, such as Singapore, Vietnam, and Indonesia  In a conflict with the United States, Chinese bases in the SCS and forces operating from them would add to a regional network of Chinese anti-access/area-denial (A2/AD) forces intended to keep U S  military forces outside the first island chain (and thus away from China's mainland)  Among other things, Chinese bases in the SCS and forces operating from them could help create a bastion (i e , a defended operating sanctuary) in the SCS for China's emerging sea-based strategic deterrent force of nuclear-powered ballistic missile submarines (SSBNs)  In a conflict with the United States, Chinese bases in the SCS and forces operating from them would be vulnerable to U S  attack  Attacking the bases and the forces operating from them, however, would tie down the attacking U S  forces for a time at least, delaying the use of those U S  forces elsewhere in a larger conflict, and potentially delay the advance of U S  forces into the SCS  Short of a conflict with the United States, Chinese bases in the SCS, and more generally, Chinese domination over or control of its near-seas region could help China to do one or more of the following on a day-to-day basis: control fishing operations and oil and gas exploration activities in the SCS; coerce, intimidate, or put political pressure on other countries bordering on the SCS; announce and enforce an air defense identification zone (ADIZ) over the SCS; announce and enforce a maritime exclusion zone (i e , a blockade) around Taiwan; facilitate the projection of Chinese military presence and political influence further into the Western Pacific; and help achieve a broader goal of becoming a regional hegemon in its part of Eurasia  In light of some of the preceding points, Chinese bases in the SCS, and more generally, Chinese domination over or control of its near-seas region could complicate the ability of the United States to intervene militarily in a crisis or conflict between China and Taiwan; fulfill U S  obligations under U S defense treaties with Japan and the Philippines and South Korea; operate U S  forces in the Western Pacific for various purposes, including maintaining regional stability, conducting engagement and partnership-building operations, responding to crises, and executing war plans; and prevent the emergence of China as a regional hegemon in its part of Eurasia  A reduced U S  ability to do one or more of the above could encourage countries in the region to reexamine their own defense programs and foreign policies, potentially leading to a further change in the region's security architecture  Some observers believe that China is trying to use disputes in the SCS and ECS to raise doubts among U S  allies and partners in the region about the dependability of the United States as an ally or partner, or to otherwise drive a wedge between the United States and its regional allies and partners, so as to weaken the U S -led regional security architecture and thereby facilitate greater Chinese influence over the region  Some observers remain concerned that maritime territorial disputes in the ECS and SCS could lead to a crisis or conflict between China and a neighboring country such as Japan or the Philippines, and that the United States could be drawn into such a crisis or conflict as a result of obligations the United States has under bilateral security treaties with Japan and the Philippines  Most recently, those concerns have focused more on the possibility of a crisis or conflict between China and Japan over the Senkaku Islands  A key element of the U S -led international order that has operated since World War II is the principle that force or coercion should not be used as a means of settling disputes between countries, and certainly not as a routine or first-resort method  Some observers are concerned that China's actions in SCS and ECS challenge this principle and—along with Russia's actions in Crimea and eastern Ukraine—could help reestablish the very different principle of "might makes right" (i e , the law of the jungle) as a routine or defining characteristic of international relations  Another key element of the U S -led international order that has operated since World War II is the treatment of the world's seas under international law as international waters (i e , as a global commons), and the principle of freedom of operations in international waters  The principle of freedom of operations in international waters is often referred to in shorthand as freedom of the seas  It is also sometimes referred to as freedom of navigation, although this term can be defined—particularly by parties who might not support freedom of the seas—in a narrow fashion, to include merely the freedom for commercial ships to navigate (i e , pass through) sea areas, as opposed to the freedom for both commercial and naval ships to conduct various activities at sea  A more complete way to refer to the principle of freedom of the seas, as stated in the Department of Defense's (DOD's) annual Freedom of Navigation (FON) report, is "all of the rights, freedoms, and lawful uses of the sea and airspace, including for military ships and aircraft, guaranteed to all nations under international law " The principle of freedom of the seas dates back hundreds of years  Some observers are concerned that China's actions in the SCS appear to challenge the principle that the world's seas are to be treated under international law as international waters  If such a challenge were to gain acceptance in the SCS region, it would have broad implications for the United States and other countries not only in the SCS, but around the world, because international law is universal in application, and a challenge to a principle of international law in one part of the world, if accepted, could serve as a precedent for challenging it in other parts of the world  Overturning the principle of freedom of the seas, so that significant portions of the seas could be appropriated as national territory, would overthrow hundreds of years of international legal tradition relating to the legal status of the world's oceans and significantly change the international legal regime governing sovereignty over much of the surface of the world  Some observers are concerned that if China's position that coastal states have a right under international law to regulate the activities of foreign military forces in their EEZs were to gain greater international acceptance under international law, it could substantially affect U S  naval operations not only in the SCS and ECS, but around the world, which in turn could substantially affect the ability of the United States to use its military forces to defend various U S  interests overseas  Significant portions of the world's oceans are claimable as EEZs, including high-priority U S  Navy operating areas in the Western Pacific, the Persian Gulf, and the Mediterranean Sea  The legal right of U S  naval forces to operate freely in EEZ waters—an application of the principle of freedom of the seas—is important to their ability to perform many of their missions around the world, because many of those missions are aimed at influencing events ashore, and having to conduct operations from more than 200 miles offshore would reduce the inland reach and responsiveness of ship-based sensors, aircraft, and missiles, and make it more difficult to transport Marines and their equipment from ship to shore  Restrictions on the ability of U S  naval forces to operate in EEZ waters could potentially require changes (possibly very significant ones) in U S  military strategy or U S  foreign policy goals  Major commercial shipping routes pass through the SCS, which links the Western Pacific to the Indian Ocean and the Persian Gulf  An estimated $3 4 trillion worth of international shipping trade passes through the SCS each year  DOD states that "the South China Sea plays an important role in security considerations across East Asia because Northeast Asia relies heavily on the flow of oil and commerce through South China Sea shipping lanes, including more than 80 percent of the crude oil [flowing] to Japan, South Korea, and Taiwan " In addition, the ECS and SCS contain potentially significant oil and gas exploration areas  Exploration activities there could potentially involve U S  firms  The results of exploration activities there could eventually affect world oil prices  As China continues to emerge as a major world power, observers are assessing what kind of international actor China will ultimately be  China's actions in the SCS and ECS could influence assessments that observers might make on issues such as China's approach to settling disputes between states (including whether China views force and coercion as acceptable means for settling such disputes, and consequently whether China believes that "might makes right"), China's views toward the meaning and application of international law, and whether China views itself more as a stakeholder and defender of the current international order, or alternatively, more as a revisionist power that will seek to change elements of that order that it does not like  Developments in the SCS and ECS could affect U S -China relations in general, which could have implications for other issues in U S -China relations  China is a party to multiple maritime territorial disputes in the SCS and ECS, including in particular the following (see Figure 1 for locations of the island groups listed below): a dispute over the Paracel Islands in the SCS, which are claimed by China and Vietnam, and occupied by China; a dispute over the Spratly Islands in the SCS, which are claimed entirely by China, Taiwan, and Vietnam, and in part by the Philippines, Malaysia, and Brunei, and which are occupied in part by all these countries except Brunei; a dispute over Scarborough Shoal in the SCS, which is claimed by China, Taiwan, and the Philippines, and controlled since 2012 by China; and a dispute over the Senkaku Islands in the ECS, which are claimed by China, Taiwan, and Japan, and administered by Japan  The island and shoal names used above are the ones commonly used in the United States; in other countries, these islands are known by various other names  These island groups are not the only land features in the SCS and ECS—the two seas feature other islands, rocks, and shoals, as well as some near-surface submerged features  The territorial status of some of these other features is also in dispute  There are additional maritime territorial disputes in the Western Pacific that do not involve China  Maritime territorial disputes in the SCS and ECS date back many years, and have periodically led to diplomatic tensions as well as confrontations and incidents at sea involving fishing vessels, oil exploration vessels and oil rigs, coast guard ships, naval ships, and military aircraft  In addition to maritime territorial disputes in the SCS and ECS, China is involved in a dispute, principally with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China's EEZ  The position of the United States and most other countries is that while the United Nations Convention on the Law of the Sea (UNCLOS), which established EEZs as a feature of international law, gives coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters  The position of China and some other countries (i e , a minority group among the world's nations) is that UNCLOS gives coastal states the right to regulate not only economic activities, but also foreign military activities, in their EEZs  In response to a request from CRS to identify the countries taking this latter position, the U S  Navy states that countries with restrictions inconsistent with the Law of the Sea Convention [i e , UNCLOS] that would limit the exercise of high seas freedoms by foreign navies beyond 12 nautical miles from the coast are [the following 27]: Bangladesh, Brazil, Burma, Cambodia, Cape Verde, China, Egypt, Haiti, India, Iran, Kenya, Malaysia, Maldives, Mauritius, North Korea, Pakistan, Portugal, Saudi Arabia, Somalia, Sri Lanka, Sudan, Syria, Thailand, United Arab Emirates, Uruguay, Venezuela, and Vietnam  Other observers provide different counts of the number of countries that take the position that UNCLOS gives coastal states the right to regulate not only economic activities but also foreign military activities in their EEZs  For example, one set of observers, in an August 2013 briefing, stated that 18 countries seek to regulate foreign military activities in their EEZs, and that 3 of these countries—China, North Korea, and Peru—have directly interfered with foreign military activities in their EEZs  The dispute over whether China has a right under UNCLOS to regulate the activities of foreign military forces operating within its EEZ appears to be at the heart of incidents between Chinese and U S  ships and aircraft in international waters and airspace, including incidents in March 2001, September 2002, March 2009, and May 2009, in which Chinese ships and aircraft confronted and harassed the U S  naval ships Bowditch , Impeccable , and Victorious as they were conducting survey and ocean surveillance operations in China's EEZ; an incident on April 1, 2001, in which a Chinese fighter collided with a U S  Navy EP-3 electronic surveillance aircraft flying in international airspace about 65 miles southeast of China's Hainan Island in the South China Sea, forcing the EP-3 to make an emergency landing on Hainan Island; an incident on December 5, 2013, in which a Chinese navy ship put itself in the path of the U S  Navy cruiser Cowpens as it was operating 30 or more miles from China's aircraft carrier Liaoning , forcing the Cowpens to change course to avoid a collision; an incident on August 19, 2014, in which a Chinese fighter conducted an aggressive and risky intercept of a U S  Navy P-8 maritime patrol aircraft that was flying in international airspace about 135 miles east of Hainan Island —DOD characterized the intercept as "very, very close, very dangerous"; and an incident on May 17, 2016, in which Chinese fighters flew within 50 feet of a Navy EP-3 electronic surveillance aircraft in international airspace in the South China Sea—a maneuver that DOD characterized as "unsafe " Figure 2 shows the locations of the 2001, 2002, and 2009 incidents listed in the first two bullets above  The incidents shown in Figure 2 are the ones most commonly cited prior to the December 2013 involving the Cowpens , but some observers list additional incidents as well  DOD stated in 2015 that The growing efforts of claimant States to assert their claims has led to an increase in air and maritime incidents in recent years, including an unprecedented rise in unsafe activity by China's maritime agencies in the East and South China Seas  U S  military aircraft and vessels often have been targets of this unsafe and unprofessional behavior, which threatens the U S  objectives of safeguarding the freedom of the seas and promoting adherence to international law and standards  China's expansive interpretation of jurisdictional authority beyond territorial seas and airspace causes friction with U S  forces and treaty allies operating in international waters and airspace in the region and raises the risk of inadvertent crisis  There have been a number of troubling incidents in recent years  For example, in August 2014, a Chinese J-11 fighter crossed directly under a U S  P-8A Poseidon operating in the South China Sea approximately 117 nautical miles east of Hainan Island  The fighter also performed a barrel roll over the aircraft and passed the nose of the P-8A to show its weapons load-out, further increasing the potential for a collision  However, since August 2014, U S -China military diplomacy has yielded positive results, including a reduction in unsafe intercepts  We also have seen the PLAN implement agreed-upon international standards for encounters at sea, such as the Code for Unplanned Encounters at Sea (CUES), which was signed in April 2014  A recent incident in the SCS occurred on September 30, 2018, between the U S  Navy destroyer Decatur (DDG-73) and a Chinese destroyer, as the Decatur was conducting a freedom of navigation (FON) operation near Gaven Reef in the Spratly Islands  In the incident, the Chinese destroyer overtook the U S  destroyer close by on the U S  destroyer's port (i e , left) side, requiring the U S  destroyer to turn starboard (i e , to the right) to avoid the Chinese ship  U S  officials stated that at the point of closest approach between the two ships, the stern (i e , back end) of the Chinese ship came within 45 yards (135 feet) of the bow (i e , front end) of the Decatur   As the encounter was in progress, the Chinese ship issued a warning by radio stating, "If you don't change course your [sic] will suffer consequences " One observer, commenting on the incident, stated, "To my knowledge, this is the first time we've had a direct threat to an American warship with that kind of language " U S  officials characterized the actions of the Chinese ship in the incident as "unsafe and unprofessional " A November 3, 2018, press report states the following: The US Navy has had 18 unsafe or unprofessional encounters with Chinese military forces in the Pacific since 2016, according to US military statistics obtained by CNN  "We have found records of 19 unsafe and/or unprofessional interactions with China and Russia since 2016 (18 with China and one with Russia)," Cmdr  Nate Christensen, a spokesman for the US Pacific Fleet, told CNN  A US official familiar with the statistics told CNN that 2017, the first year of the Trump administration, saw the most unsafe and or unprofessional encounters with Chinese forces during the period  At least three of those incidents took place in February, May and July of that year and involved Chinese fighter jets making what the US considered to be "unsafe" intercepts of Navy surveillance planes  While the 18 recorded incidents only involved US naval forces, the Air Force has also had at least one such encounter during this period…  The US Navy told CNN that, in comparison, there were 50 unsafe or unprofessional encounters with Iranian military forces since 2016, with 36 that year, 14 last year and none in 2018  US and Iranian naval forces tend to operate in relatively narrow stretches of water, such as the Strait of Hormuz, increasing their frequency of close contact  DOD states that Although China has long challenged foreign military activities in its maritime zones in a manner that is inconsistent with the rules of customary international law as reflected in the LOSC, the PLA has recently started conducting the very same types of military activities inside and outside the first island chain in the maritime zones of other countries  This contradiction highlights China's continued lack of commitment to the rules of customary international law  Even though China is a state party to the LOSC [i e , UNCLOS], China's domestic laws restrict military activities in its exclusive economic zone (EEZ), including intelligence collection and military surveys, contrary to LOSC  At the same time, the PLA is increasingly undertaking military operations in other countries' EEZs  The map on the following page [not reproduced here] depicts new PLA operating areas in foreign EEZs since 2014  In 2017, the PLAN conducted air and naval operations in Japan's EEZ; employed an AGI [intelligence-gathering ship] ship, likely to monitor testing of a THAAD system in the U S  EEZ near the Aleutian Islands; and employed an AGI ship to monitor a multi-national naval exercise in Australia's EEZ  PLA operations in foreign EEZs have taken place in Northeast and Southeast Asia, and a growing number of operations are also occurring farther from Chinese shores  The issue of whether China has the right under UNCLOS to regulate foreign military activities in its EEZ is related to, but ultimately separate from, the issue of territorial disputes in the SCS and ECS: The two issues are related because China can claim EEZs from inhabitable islands over which it has sovereignty, so accepting China's claims to sovereignty over inhabitable islands in the SCS or ECS could permit China to expand the EEZ zone within which China claims a right to regulate foreign military activities  The two issues are ultimately separate from one another because even if all the territorial disputes in the SCS and ECS were resolved, and none of China's claims in the SCS and ECS were accepted, China could continue to apply its concept of its EEZ rights to the EEZ that it unequivocally derives from its mainland coast—and it is in this unequivocal Chinese EEZ that several of the past U S -Chinese incidents at sea have occurred  Press reports of maritime disputes in the SCS and ECS sometimes focus on territorial disputes while devoting little or no attention to the EEZ dispute, or do relatively little to distinguish the EEZ dispute from the territorial disputes  From the U S  perspective, the EEZ dispute is arguably as significant as the maritime territorial disputes because of the EEZ dispute's proven history of leading to U S -Chinese incidents at sea and because of its potential for affecting U S  military operations not only in the SCS and ECS, but around the world  For background information on treaties and international agreements related to the disputes, see Appendix C   For background information on the July 2016 tribunal award in the SCS arbitration case involving the Philippines and China concerning maritime territorial issues in the SCS, see Appendix D   In general, China's approach to the maritime disputes in the SCS and ECS, and to strengthening its position over time in the SCS, can be characterized as follows: China appears to have identified the assertion and defense of its maritime territorial claims in the SCS and ECS, and the strengthening of its position in the SCS, as important national goals  To achieve these goals, China appears to be employing an integrated, whole-of-society strategy that includes diplomatic, informational, economic, military, paramilitary/law enforcement, and civilian elements  In implementing this integrated strategy, China appears to be persistent, patient, tactically flexible, willing to expend significant resources, and willing to absorb at least some amount of reputational and other costs that other countries might seek to impose on China in response to China's actions  Observers frequently characterize China's approach to the SCS and ECS as a "salami-slicing" strategy that employs a series of incremental actions, none of which by itself is a casus belli , to gradually change the status quo in China's favor  At least one Chinese official has used the term "cabbage strategy" to refer to a strategy of consolidating control over disputed islands by wrapping those islands, like the concentric leaves of a cabbage, in successive layers of occupation and protection formed by fishing boats, Chinese Coast Guard ships, and then finally Chinese naval ships  Other observers have referred to China's approach as a strategy of gray zone operations (i e , operations that reside in a gray zone between peace and war), of creeping annexation or creeping invasion, or as a "talk and take" strategy, meaning a strategy in which China engages in (or draws out) negotiations while taking actions to gain control of contested areas  Perhaps more than any other set of actions, China's island-building (aka land-reclamation) and base-construction activities at sites that it occupies in the Paracel Islands and Spratly Islands in the SCS have heightened concerns among U S  observers that China is rapidly gaining effective control of the SCS  China's island-building and base-construction activities in the SCS appear to have begun around December 2013, and were publicly reported starting in May 2014  Awareness of, and concern about, the activities appears to have increased substantially following the posting of a February 2015 article showing a series of "before and after" satellite photographs of islands and reefs being changed by the work  China occupies seven sites in the Spratly Islands  It has engaged in island-building and facilities-construction activities at most or all of these sites, and particularly at three of them—Fiery Cross Reef, Subi Reef, and Mischief Reef, all of which now feature lengthy airfields as well as substantial numbers of buildings  Although other countries, such as Vietnam, have engaged in their own island-building and facilities-construction activities at sites that they occupy in the SCS, these efforts are dwarfed in size by China's island-building and base-construction activities in the SCS  DOD stated in 2017 that In 2016, China focused its main effort on infrastructure construction at its outposts on the Spratly Islands  Although its land reclamation and artificial islands do not strengthen China's territorial claims as a legal matter or create any new territorial sea entitlements, China will be able to use its reclaimed features as persistent civil-military bases to enhance its presence in the South China Sea and improve China's ability to control the features and nearby maritime space  China reached milestones of landing civilian aircraft on its airfields on Fiery Cross Reef, Subi Reef, and Mischief Reef for the first time in 2016, as well as landing a military transport aircraft on Fiery Cross Reef to evacuate injured personnel     China's Spratly Islands outpost expansion effort is currently focused on building out the land-based capabilities of its three largest outposts—Fiery Cross, Subi, and Mischief Reefs—after completion of its four smaller outposts early in 2016  No substantial land has been reclaimed at any of the outposts since China ended its artificial island creation in the Spratly Islands in late 2015 after adding over 3,200 acres of land to the seven features it occupies in the Spratlys  Major construction features at the largest outposts include new airfields—all with runways at least 8,800 feet in length—large port facilities, and water and fuel storage  As of late 2016, China was constructing 24 fighter-sized hangars, fixed-weapons positions, barracks, administration buildings, and communication facilities at each of the three outposts  Once all these facilities are complete, China will have the capacity to house up to three regiments of fighters in the Spratly Islands  China has completed shore-based infrastructure on its four smallest outposts in the Spratly Islands: Johnson, Gaven, Hughes, and Cuarteron Reefs  Since early 2016, China has installed fixed, land-based naval guns on each outpost and improved communications infrastructure  The Chinese Government has stated that these projects are mainly for improving the living and working conditions of those stationed on the outposts, safety of navigation, and research; however, most analysts outside China believe that the Chinese Government is attempting to bolster its de facto control by improving its military and civilian infrastructure in the South China Sea  The airfields, berthing areas, and resupply facilities on its Spratly outposts will allow China to maintain a more flexible and persistent coast guard and military presence in the area  This would improve China's ability to detect and challenge activities by rival claimants or third parties, widen the range of capabilities available to China, and reduce the time required to deploy them     China's construction in the Spratly Islands demonstrates China's capacity—and a newfound willingness to exercise that capacity—to strengthen China's control over disputed areas, enhance China's presence, and challenge other claimants     In 2016, China built reinforced hangars on several of its Spratly Island outposts in the South China Sea  These hangars could support up to 24 fighters or any other type of PLA aircraft participating in force projection operations  In April, May, and June 2018, it was reported that China has landed aircraft and moved electronic jamming equipment, surface-to-air missiles, and anti-ship missile systems to its newly built facilities in the SCS  In July 2018, it was reported that "China is quietly testing electronic warfare assets recently installed at fortified outposts in the South China Sea… " Also in July 2018, Chinese state media announced that a Chinese search and rescue ship had been stationed at Subi Reef—the first time that such a ship had been permanently stationed by China at one of its occupied sites in the Spratly Islands  For additional discussion of China's island-building and facility-construction activities, see CRS Report R44072, Chinese Land Reclamation in the South China Sea: Implications and Policy Options , by Ben Dolven et al  In addition to the island-building and base-construction activities discussed above, additional Chinese actions in the SCS and ECS have heightened concerns among U S  observers  Following a confrontation in 2012 between Chinese and Philippine ships at Scarborough Shoal, China gained de facto control over access to the shoal and its fishing grounds  Subsequent Chinese actions that have heightened concerns among U S  observers, particularly since late 2013, include the following, among others: China's announcement on November 23, 2013, of an air defense identification zone (ADIZ) over the ECS that includes airspace over the Senkaku Islands; frequent patrols by Chinese Coast Guard ships—some observers refer to them as harassment operations—at the Senkaku Islands; Chinese pressure against the small Philippine military presence at Second Thomas Shoal in the Spratly Islands, where a handful of Philippine military personnel occupy a beached (and now derelict) Philippine navy amphibious ship; the implementation on January 1, 2014, of fishing regulations administered by China's Hainan province applicable to waters constituting more than half of the SCS, and the reported enforcement of those regulations with actions that have included the apprehension of non-Chinese fishing boats; and a growing civilian Chinese presence on some of the sites in the SCS occupied by China in the SCS, including both Chinese vacationers and (in the Paracels) permanent settlements  China asserts and defends its maritime claims not only with navy ships, but also with coast guard cutters and maritime militia vessels  Indeed, China employs its coast guard and maritime militia more regularly and extensively than its navy in its maritime sovereignty-assertion operations  DOD states that China's navy, coast guard, and maritime militia together "form the largest maritime force in the Indo-Pacific " DOD states that the China Coast Guard (CCG) is the world's largest coast guard  It is much larger than the coast guard of any country in the region, and it has increased substantially in size in recent years through the addition of many newly built ships  China makes regular use of CCG ships to assert and defend its maritime claims, particularly in the ECS, with Chinese navy ships sometimes available over the horizon as backup forces  The Defense Intelligence Agency (DIA) states the following: Under Chinese law, maritime sovereignty is a domestic law enforcement issue under the purview of the CCG  Beijing also prefers to use CCG ships for assertive actions in disputed waters to reduce the risk of escalation and to portray itself more benignly to an international audience  For situations that Beijing perceives carry a heightened risk of escalation, it often deploys PLAN combatants in close proximity for rapid intervention if necessary  China also relies on the PAFMM—a paramilitary force of fishing boats—for sovereignty enforcement actions…  China primarily uses civilian maritime law enforcement agencies in maritime disputes, employing the PLAN [i e , China's navy] in a protective capacity in case of escalation  The CCG has rapidly increased and modernized its forces, improving China's ability to enforce its maritime claims  Since 2010, the CCG's large patrol ship fleet (more than 1,000 tons) has more than doubled in size from about 60 to more than 130 ships, making it by far the largest coast guard force in the world and increasing its capacity to conduct extended offshore operations in a number of disputed areas simultaneously  Furthermore, the newer ships are substantially larger and more capable than the older ships, and the majority are equipped with helicopter facilities, high-capacity water cannons, and guns ranging from 30-mm to 76-mm  Among these ships, a number are capable of long-distance, long-endurance out-of-area operations  In addition, the CCG operates more than 70 fast patrol combatants ([each displacing] more than 500 tons), which can be used for limited offshore operations, and more than 400 coastal patrol craft (as well as about 1,000 inshore and riverine patrol boats)  By the end of the decade, the CCG is expected to add up to 30 patrol ships and patrol combatants before the construction program levels off  In March 2018, China announced that control of the CCG would be transferred from the civilian State Oceanic Administration to the Central Military Commission  The transfer occurred on July 1, 2018  On May 22, 2018, it was reported that China's navy and the CCG had conducted their first joint patrols in disputed waters off the Paracel Islands in the SCS, and had expelled at least 10 foreign fishing vessels from those waters  China also uses the People's Armed Forces Maritime Militia (PAFMM)—a force that essentially consists of fishing ships with armed crew members—to defend its maritime claims  In the view of some observers, the PAFMM—even more than China's navy or coast guard—is the leading component of China's maritime forces for asserting its maritime claims, particularly in the SCS  U S  analysts in recent years have paid increasing attention to the role of the PAFMM as a key tool for implementing China's salami-slicing strategy, and have urged U S  policymakers to focus on the capabilities and actions of the PAFMM  DOD states that "the PAFMM is the only government-sanctioned maritime militia in the world," and that it "has organizational ties to, and is sometimes directed by, China's armed forces " DIA states that The PAFMM is a subset of China's national militia, an armed reserve force of civilians available for mobilization to perform basic support duties  Militia units organize around towns, villages, urban subdistricts, and enterprises, and they vary widely from one location to another  The composition and mission of each unit reflects local conditions and personnel skills  In the South China Sea, the PAFMM plays a major role in coercive activities to achieve China's political goals without fighting, part of broader Chinese military doctrine that states that confrontational operations short of war can be an effective means of accomplishing political objectives  A large number of PAFMM vessels train with and support the PLA and CCG in tasks such as safeguarding maritime claims, protecting fisheries, and providing logistic support, search and rescue (SAR), and surveillance and reconnaissance  The Chinese government subsidizes local and provincial commercial organizations to operate militia ships to perform "official" missions on an ad hoc basis outside their regular commercial roles  The PAFMM has played a noteworthy role in a number of military campaigns and coercive incidents over the years, including the harassment of Vietnamese survey ships in 2011, a standoff with the Philippines at Scarborough Reef in 2012, and a standoff involving a Chinese oil rig in 2014  In the past, the PAFMM rented fishing boats from companies or individual fisherman, but it appears that China is building a state-owned fishing fleet for its maritime militia force in the South China Sea  Hainan Province, adjacent to the South China Sea, ordered the construction of 84 large militia fishing boats with reinforced hulls and ammunition storage for Sansha City, and the militia took delivery by the end of 2016  China regularly states that it supports freedom of navigation and has not interfered with freedom of navigation  China, however, appears to hold a narrow definition of freedom of navigation that is centered on the ability of commercial cargo ships to pass through international waters  In contrast to the broader U S /Western definition of freedom of navigation (aka freedom of the seas), the Chinese definition does not appear to include operations conducted by military ships and aircraft  It can also be noted that China has frequently interfered with commercial fishing operations by non-Chinese fishing vessels—something that some observers would regard as a form of interfering with freedom of navigation for commercial ships  An August 12, 2015, press report states the following (emphasis added): China respects freedom of navigation in the disputed South China Sea but will not allow any foreign government to invoke that right so its military ships and planes can intrude in Beijing's territory, the Chinese ambassador [to the Philippines] said  Ambassador Zhao Jianhua said late Tuesday [August 11] that Chinese forces warned a U S  Navy P-8A [maritime patrol aircraft] not to intrude when the warplane approached a Chinese-occupied area in the South China Sea's disputed Spratly Islands in May     "We just gave them warnings, be careful, not to intrude," Zhao told reporters on the sidelines of a diplomatic event in Manila     When asked why China shooed away the U S  Navy plane when it has pledged to respect freedom of navigation in the South China Sea, Zhao outlined the limits in China's view  "Freedom of navigation does not mean to allow other countries to intrude into the airspace or the sea which is sovereign  No country will allow that," Zhao said  "We say freedom of navigation must be observed in accordance with international law  No freedom of navigation for warships and airplanes  " A July 19, 2016, press report states the following: A senior Chinese admiral has rejected freedom of navigation for military ships, despite views held by the United States and most other nations that such access is codified by international law  The comments by Adm  Sun Jianguo, deputy chief of China's joint staff, come at a time when the U S  Navy is particularly busy operating in the South China Sea, amid tensions over sea and territorial rights between China and many of its neighbors in the Asia-Pacific region  "When has freedom of navigation in the South China Sea ever been affected? It has not, whether in the past or now, and in the future there won't be a problem as long as nobody plays tricks," Sun said at a closed forum in Beijing on Saturday, according to a transcript obtained by Reuters  "But China consistently opposes so-called military freedom of navigation, which brings with it a military threat and which challenges and disrespects the international law of the sea," Sun said  A March 4, 2017, press report states the following: Wang Wenfeng, a US affairs expert at the China Institute of Contemporary International Relations, said Beijing and Washington obviously had different definitions of what constituted freedom of navigation  "While the US insists they have the right to send warships to the disputed waters in the South China Sea, Beijing has always insisted that freedom of navigation should not cover military ships," he said  A February 22, 2018, press report states the following: Hundreds of government officials, experts and scholars from all over the world conducted in-depth discussions of various security threats under the new international security situation at the 54 th Munich Security Conference (MSC) from Feb  16 to 18, 2018  Experts from the Chinese delegation at the three-day event were interviewed by reporters on hot topics such as the South China Sea issue and they refuted some countries' misinterpretation of the relevant international law  The conference included a panel discussion on the South China Sea issue, which China and the Association of Southeast Asian Nations (ASEAN) countries have been committed to properly solving since the signing of the draft South China Sea code of conduct  Senior Colonel Zhou Bo, director of the Security Cooperation Center of the International Military Cooperation Office of the Chinese Ministry of National Defense, explained how some countries' have misinterpreted the international law  "First of all, we must abide by the United Nations Convention on the Law of the Sea (UNCLOS)," Zhou said  "But the problem now is that some countries unilaterally and wrongly interpreted the 'freedom of navigation' of the UNCLOS as the 'freedom of military operations', which is not the principle set by the UNCLOS," Zhou noted  A June 27, 2018, opinion piece in a British newspaper by China's ambassador to the UK stated that freedom of navigation is not an absolute freedom to sail at will  The US Freedom of Navigation Program should not be confused with freedom of navigation that is universally recognised under international law  The former is an excuse to throw America's weight about wherever it wants  It is a distortion and a downright abuse of international law into the "freedom to run amok"  Second, is there any problem with freedom of navigation in the South China Sea? The reality is that more than 100,000 merchant ships pass through these waters every year and none has ever run into any difficulty with freedom of navigation     The South China Sea is calm and the region is in harmony  The so-called "safeguarding freedom of navigation" issue is a bogus argument  The reason for hyping it up could be either an excuse to get gunboats into the region to make trouble, or a premeditated intervention in the affairs of the South China Sea, instigation of discord among the parties involved and impairment of regional stability…  China respects and supports freedom of navigation in the South China Sea according to international law  But freedom of navigation is not the freedom to run amok  For those from outside the region who are flexing their muscles in the South China Sea, the advice is this: if you really care about freedom of navigation, respect the efforts of China and Asean countries to safeguard peace and stability, stop showing off your naval ships and aircraft to "militarise" the region, and let the South China Sea be a sea of peace  A September 20, 2018, press report stated the following: Chinese Ambassador to Britain Liu Xiaoming on Wednesday [September 19] said that the freedom of navigation in the South China Sea has never been a problem, warning that no one should underestimate China's determination to uphold peace and stability in the region…  Liu stressed that countries in the region have the confidence, capability and wisdom to deal with the South China Sea issue properly and achieve enduring stability, development and prosperity  "Yet to everyone's confusion, some big countries outside the region did not seem to appreciate the peace and tranquility in the South China Sea," he said  "They sent warships and aircraft all the way to the South China Sea to create trouble " The senior diplomat said that under the excuse of so-called "freedom of navigation," these countries ignored the vast sea lane and chose to sail into the adjacent waters of China's islands and reefs to show off their military might  "This was a serious infringement" of China's sovereignty, he said  "It threatened China's security and put regional peace and stability in jeopardy " Liu stressed that China has all along respected and upheld the freedom of navigation and over-flight in the South China Sea in accordance with international law, including the United Nations Convention on the Law of the Sea  "Freedom of navigation is not a license to do whatever one wishes," he said, noting that freedom of navigation is not freedom to invade other countries' territorial waters and infringe upon other countries' sovereignty  "Such 'freedom' must be stopped," Liu noted  "Otherwise the South China Sea will never be tranquil " In contrast to China's narrow definition, the U S /Western definition of freedom of navigation is much broader, encompassing operations of various types by both commercial and military ships and aircraft in international waters and airspace  As discussed earlier in this report, an alternative term for referring to the U S /Western definition of freedom of navigation is freedom of the seas, meaning "all of the rights, freedoms, and lawful uses of the sea and airspace, including for military ships and aircraft, guaranteed to all nations under international law " When Chinese officials state that China supports freedom of navigation, China is referring to its own narrow definition of the term, and is likely not expressing agreement with or support for the U S /Western definition of the term  China prefers to discuss maritime territorial disputes with other regional parties to the disputes on a bilateral rather than multilateral basis  Some observers believe China prefers bilateral talks because China is much larger than any other country in the region, giving China a potential upper hand in any bilateral meeting  China generally has resisted multilateral approaches to resolving maritime territorial disputes, stating that such approaches would internationalize the disputes, although the disputes are by definition international even when addressed on a bilateral basis  (China's participation with the ASEAN states in the 2002 declaration of conduct DOC and in negotiations with the ASEAN states on the follow-on binding code of conduct (COC) [see Appendix C ] represents a departure from this general preference ) Some observers believe China is pursuing a policy of putting off a negotiated resolution of maritime territorial disputes so as to give itself time to implement the salami-slicing strategy  Along with its above-discussed preference for treating territorial disputes on a bilateral rather than multilateral basis, China resists and objects to U S  involvement in maritime disputes in the SCS and ECS  Statements in China's state-controlled media sometimes depict the United States as an outsider or interloper whose actions (including freedom of navigation operations) are seeking to "stir up trouble" in an otherwise peaceful regional situation  Potential or actual Japanese involvement in the SCS is sometimes depicted in China's state-controlled media in similar terms  Depicting the United States in this manner can be viewed as consistent with goals of attempting to drive a wedge between the United States and its allies and partners in the region and of ensuring maximum leverage in bilateral (rather than multilateral) discussions with other countries in the region over maritime territorial disputes  A July 31, 2018, press report stated the following: The Philippines has expressed concern to China over an increasing number of Chinese radio messages warning Philippine aircraft and ships to stay away from newly fortified islands and other territories in the South China Sea claimed by both countries, officials said Monday  A Philippine government report showed that in the second half of last year alone, Philippine military aircraft received such Chinese radio warnings at least 46 times while patrolling near artificial islands built by China in the South China Sea's Spratly archipelago  The Chinese radio messages were "meant to step up their tactics to our pilots conducting maritime air surveillance in the West Philippine Sea", the report said, using the Philippine name for the South China Sea  A Philippine air force plane on patrol near the Chinese-held islands received a particularly offensive radio message in late January according to the Philippine government report  It was warned by Chinese forces that it was "endangering the security of the Chinese reef  Leave immediately and keep off to avoid misunderstanding," the report said  Shortly afterwards, the plane received a veiled threat: "Philippine military aircraft, I am warning you again, leave immediately or you will pay the possible consequences " The Filipino pilot later "sighted two flare warning signals from the reef", said the report, which identified the Chinese-occupied island as Gaven Reef  Philippine officials have raised their concern twice over the radio transmissions, including in a meeting with Chinese counterparts in Manila earlier this year that focused on the Asian countries' long-unresolved territorial disputes, according to two officials who spoke on condition of anonymity because they were not authorised to discuss the issue publicly  It is a new problem that emerged after China transformed seven disputed reefs into islands using dredged sand in the Spratlys… The messages used to originate from Chinese coastguard ships in past years but US military officials suspect transmissions now are also being sent from the Beijing-held artificial islands, where far more powerful communications and surveillance equipment has been installed along with weapons such as surface-to-air missiles  "Our ships and aircraft have observed an increase in radio queries that appear to originate from new land-based facilities in the South China Sea," Commander Clay Doss, public affairs officer of the US 7th Fleet, said by email in response to questions about the Chinese messages  "These communications do not affect our operations," Doss said…  US Navy ships and aircraft communicate routinely with regional navies, including the Chinese navy  "The vast majority of these communications are professional, and when that is not the case, those issues are addressed by appropriate diplomatic and military channels," Doss said  For discussion of some additional elements of China's approach to maritime disputes in the SCS and ECS, including China's nine-dash line in the SCS, see Appendix E   The U S  position on territorial and EEZ disputes in the Western Pacific (including those involving China) includes the following elements, among others: The United States supports the principle that disputes between countries should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law  The United States supports the principle of freedom of seas, meaning the rights, freedoms, and uses of the sea and airspace guaranteed to all nations in international law  The United States opposes claims that impinge on the rights, freedoms, and lawful uses of the sea that belong to all nations  The United States takes no position on competing claims to sovereignty over disputed land features in the ECS and SCS  Although the United States takes no position on competing claims to sovereignty over disputed land features in the ECS and SCS, the United States does have a position on how competing claims should be resolved: Territorial disputes should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law  Claims of territorial waters and EEZs should be consistent with customary international law of the sea and must therefore, among other things, derive from land features  Claims in the SCS that are not derived from land features are fundamentally flawed  Parties should avoid taking provocative or unilateral actions that disrupt the status quo or jeopardize peace and security  The United States does not believe that large-scale land reclamation with the intent to militarize outposts on disputed land features is consistent with the region's desire for peace and stability  The United States, like most other countries, believes that coastal states under UNCLOS have the right to regulate economic activities in their EEZs, but do not have the right to regulate foreign military activities in their EEZs  U S  military surveillance flights in international airspace above another country's EEZ are lawful under international law, and the United States plans to continue conducting these flights as it has in the past  The Senkaku Islands are under the administration of Japan and unilateral attempts to change the status quo raise tensions and do nothing under international law to strengthen territorial claims  For additional information regarding the U S  position on the issue of operational rights of military ships in the EEZs of other countries, see Appendix F   U S  Navy ships challenge what the United States views as excessive maritime claims and carry out assertions of operational rights as part of the U S  Freedom of Navigation (FON) program for challenging maritime claims that the United States believes to be inconsistent with international law  The FON program began in 1979, involves diplomatic activities as well as operational assertions by U S  Navy ships, and is global in scope, encompassing activities and operations directed not only at China, but at numerous other countries around the world, including U S  allies and partner states  DOD's record of "excessive maritime claims that were challenged by DoD operational assertions and activities during the period of October 1, 2016, to September 30, 2017, in order to preserve the rights, freedoms, and uses of the sea and airspace guaranteed to all nations by international law" includes a listing for multiple challenges that were conducted to challenge Chinese claims relating to "excessive straight baselines; jurisdiction over airspace above the exclusive economic zone (EEZ); restriction on foreign aircraft flying through an Air Defense Identification Zone (ADIZ) without the intent to enter national airspace; domestic law criminalizing survey activity by foreign entities in the EEZ; prior permission required for innocent passage of foreign military ships through the TTS; and actions/statements that indicate a claim to a TTS [territorial sea] around features not so entitled " Some observers now assess that China's actions in the SCS have achieved for China a more dominant or more commanding position in the SCS  One observer, for example, writes in a March 28, 2018, commentary piece that as Beijing's regional clout continues to grow, it can be hard for weaker nations to resist it, even with these allies' support  Barely three weeks after the [the U S  aircraft carrier Carl] Vinson's visit [to Vietnam], the Vietnamese government bowed to Chinese pressure and canceled a major oil drilling project in disputed South China waters  It was yet another sign of the region's rapidly shifting dynamics  For the last decade, the United States and its Asian allies have been significantly bolstering their military activities in the region with the explicit aim of pushing back against China  But Beijing's strength and dominance, along with its diplomatic, economic and military reach, continues to grow dramatically     Western military strategists worry that China will, in time, be able to block any activity in the region by the United States and its allies  Already, satellite photos show China installing sophisticated weapons on a range of newly-reclaimed islands where international law says they simply should not be present  In any war, these and other new weapons that China is acquiring could make it all but impossible for the U S  Navy and other potential enemies of China to operate in the area at all     China's increasing confidence in asserting control over the South China Sea has clearly alarmed its neighbors, particularly the Philippines, Vietnam, Malaysia, Indonesia and Brunei, all of whom have competing territorial claims over waters that China claims for itself  But it also represents a major and quite deliberate challenge to the United States which, as an ally to all these nations, has essentially staked its own credibility on the issue  Over the last several years, it has become common practice for U S  warships to sail through nearby waters, pointedly refusing to acknowledge Chinese demands that they register with its unilaterally-declared air and maritime "identification zones" (which the United States and its allies do not recognize)     None of this, however, addresses the seismic regional change produced by China's island-building strategy         China sees this confrontation as a test case for its ability to impose its will on the wider region—and so far it is winning     The United States remains the world's preeminent military superpower, and there is little doubt it could win a fight with China almost anywhere else in the world  In its own backyard, however, Beijing is making it increasingly clear that it calls the shots  And for now, there is little sign anyone in Washington—or anywhere else—has the appetite to seriously challenge that assumption  An April 9, 2018, article from a Chinese media outlet states the following: The situation in the South China Sea has been developing in favor of China, said Chinese observers after media reported that China is conducting naval drills in the region, at the same time as "three US carrier battle groups passed by" the area  "The regional strategic situation is tipping to China's side in the South China Sea, especially after China's construction of islands and reefs," Chen Xiangmiao, a research fellow at the National Institute for the South China Sea, told the Global Times on Sunday  China has strengthened its facilities in the region and conducted negotiations and cooperation on the South China Sea, which have narrowed China's gap in power with the US, while gaining advantages over Japan and India, according to Chen  U S  Navy Admiral Philip Davidson, in responses to advance policy questions from the Senate Armed Services Committee for an April 17, 2018, hearing before the committee to consider nominations, including Davidson's nomination to become Commander, U S  Pacific Command (PACOM), stated the following in part (emphasis added): With respect to their actions in the South China Sea and more broadly through the Belt and Road Initiative, the Chinese are clearly executing deliberate and thoughtful force posture initiatives  China claims that these reclaimed features and the Belt and Road Initiative [BRI] will not be used for military means, but their words do not match their actions     While Chinese air forces are not as advanced as those of the United States, they are rapidly closing the gap through the development of new fourth and fifth generation fighters (including carrier-based fighters), long range bombers, advanced UAVs, advanced anti-air missiles, and long-distance strategic airlift  In line with the Chinese military's broader reforms, Chinese air forces are emphasizing joint operations and expanding their operations, such as through more frequent long range bomber flights into the Western Pacific and South China Sea  As a result of these technological and operational advances, the Chinese air forces will pose an increasing risk not only to our air forces but also to our naval forces, air bases and ground forces     In the South China Sea, the PLA has constructed a variety of radar, electronic attack, and defense capabilities on the disputed Spratly Islands, to include: Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Hughes Reef, Johnson Reef, Mischief Reef and Subi Reef  These facilities significantly expand the real-time domain awareness, ISR, and jamming capabilities of the PLA over a large portion of the South China Sea, presenting a substantial challenge to U S  military operations in this region     China's development of forward military bases in the South China Sea began in December 2013 when the first dredger arrived at Johnson Reef  Through 2015, China used dredging efforts to build up these reefs and create manmade islands, destroying the reefs in the process  Since then, China has constructed clear military facilities on the islands, with several bases including hangars, barracks, underground fuel and water storage facilities, and bunkers to house offense and defensive kinetic and non-kinetic systems  These actions stand in direct contrast to the assertion that President Xi made in 2015 in the Rose Garden when he commented that Beijing had no intent to militarize the South China Sea  Today these forward operating bases appear complete  The only thing lacking are the deployed forces  Once occupied, China will be able to extend its influence thousands of miles to the south and project power deep into Oceania  The PLA will be able to use these bases to challenge U S  presence in the region, and any forces deployed to the islands would easily overwhelm the military forces of any other South China Sea-claimants  In short, China is now capable of controlling the South China Sea in all scenarios short of war with the United States      Ultimately, BRI provides opportunities for China's military to expand its global reach by gaining access to foreign air and maritime port facilities  This reach will allow China's military to extend its striking and surveillance operations from the South China Sea to the Gulf of Aden  Moreover, Beijing could leverage BRI projects to pressure nations to deny U S  forces basing, transit, or operational and logistical support, thereby making it more challenging for the United States to preserve international orders and norms     With respect to the Indo-Pacific region, specifically, I am concerned that some nations, including China, assert their interests in ways that threaten the foundational standards for the world's oceans as reflected in the Law of the Sea Convention  This trend is most evident off the coast of China and in the South China Sea where China's policies and activities are challenging the free and open international order in the air and maritime domains  China's attempts to restrict the rights, freedoms, and lawful uses of the sea available to naval and air forces is inconsistent with customary international law and as President Reagan said in the 1983 Statement on United States Oceans Policy, "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 overflight " A May 8, 2018, press report states the following: China's neighbors and rivals fear that the Asian powerhouse is slowly but surely establishing the foundation of an Air Defense Identification Zone (ADIZ) in one of the world's most important and busy waterways…  Boosting China's missile defense system in the area would allow it to progressively restrict the movement as well as squeeze the supply lines of smaller claimant states, all of which maintain comparatively modest military capabilities to fortify their sea claims " Another observer writes in a May 10, 2018, commentary piece that All these developments [in the SCS], coupled with the lack of any concerted or robust response from the United States and its allies and partners in the region, point to the inevitable conclusion that the sovereignty dispute in the SCS has – irreversibly – become a foregone conclusion  Three compelling reasons justify this assertion…  First, China sees the SCS issue as a security matter of paramount importance, according it the status of a "core interest" – on par with resolution of the Taiwan question…  Second, the sovereignty of SCS waters is a foregone conclusion partly because of U S  ambivalence toward Chinese military encroachment…  Third, the implicit acquiescence of ASEAN [Association of Southeast Asian Nations] states toward China's moves in the SCS has strengthened its position that all features and waters within the "nine-dashed line" belongs to Beijing…  The above three factors – Beijing's sharpened focus on national security, lack of American resolve to balance China in the SCS, and ASEAN's prioritization of peace and stability over sovereignty considerations – have contributed to the bleak state of affairs today…  From the realist perspective, as Beijing accrues naval dominance in the SCS, the rules meant to regulate its behavior are likely to matter less and less—underscoring the geopolitical truism that 'might is right ' While China foreswears the use of coercive force on its Southeast Asian neighbors and may indeed have no offensive intentions today, it has now placed itself in a position to do so in future  In other words, while it had no capacity nor intent to threaten Southeast Asian states previously, it has developed the requisite capabilities today  Another observer writes in a separate May 10, 2018, commentary piece that the South China Sea is being increasingly dominated militarily by China at both its eastern and western ends  This is what researchers at the US Naval War College meant when they told the author that Chinese militarization activities in the region are an attempt to create the equivalent of a "strategic strait" in the South China Sea  In other words, through the more or less permanent deployment of Chinese military power at both extreme ends of the South China Sea – Hainan and Woody Island in the west, and the new (and newly militarized) artificial islands in the east – Beijing is seeking to transform the South China Sea from an international SLOC into a Chinese-controlled waterway and a strategic chokepoint for other countries…  This amalgamation of force means that China's decades-long "creeping assertiveness" in this particular body of water has become a full-blown offensive  What all this means is that China is well on its way toward turning the South China Sea in a zone of anti-access/area denial (A2/AD)  This means keeping military competitors (particularly the US Navy) out of the region, or seriously impeding their freedom of action inside it  A June 1, 2018, press report states the following: Through its navy, coast guard, a loose collection of armed fishing vessels, and a network of military bases built on artificial islands, Beijing has gained de facto control of the South China Sea, a panel of Indo-Pacific security experts said Friday  And the implications of that control—militarily, economically, diplomatically—are far-reaching for the United States and its partners and allies in the region  "Every vessel [sent on a freedom of navigation transit] is shadowed" by a Chinese vessel, showing Beijing's ability to respond quickly events in areas it considers its own, retired Marine Lt  Gen  Wallace "Chip" Gregson said during an American Enterprise Institute forum  Another observer writes in a June 5, 2018, commentary piece that It's over in the South China Sea  The United States just hasn't figured it out yet…  It is past time for the United States to figure out what matters in its relationship with China, and to make difficult choices about which values have to be defended, and which can be compromised  A June 21, 2018, editorial states the following: America's defence secretary, James Mattis, promised "larger consequences" if China does not change track [in the SCS]  Yet for now [Chinese President Xi Jinping], while blaming America's own "militarisation" as the source of tension, must feel he has accomplished much  He has a chokehold on one of the world's busiest shipping routes and is in a position to make good on China's claims to the sea's oil, gas and fish  He has gained strategic depth in any conflict over Taiwan  And, through the sheer fact of possession, he has underpinned China's fatuous historical claims to the South China Sea  To his people, Mr Xi can paint it all as a return to the rightful order  Right now, it is not clear what the larger consequences of that might be  Another observer writes in a July 17, 2018, commentary piece that Two years after an international tribunal rejected expansive Chinese claims to the South China Sea, Beijing is consolidating control over the area and its resources  While the U S  defends the right to freedom of navigation, it has failed to support the rights of neighboring countries under the tribunal's ruling  As a result, Southeast Asian countries are bowing to Beijing's demands…  In late July 2017, Beijing threatened Vietnam with military action if it did not stop oil and gas exploration in Vietnam's exclusive economic zone, according to a report by the BBC's Bill Hayton  Hanoi stopped drilling  Earlier this year, Vietnam again attempted to drill, and Beijing issued similar warnings…  Other countries, including the U S , failed to express support for Vietnam or condemn China's threats  Beijing has also pressured Brunei, Malaysia and the Philippines to agree to "joint development" in their exclusive economic zones—a term that suggests legitimate overlapping claims  Meanwhile China is accelerating its militarization of the South China Sea  In April, it deployed antiship cruise missiles, surface-to-air missiles and electronic jammers to artificial islands constructed on Fiery Cross Reef, Subi Reef and Mischief Reef  In May, it landed long-range bombers on Woody Island  The Trump administration's failure to press Beijing to abide by the tribunal's ruling is a serious mistake  It undermines international law and upsets the balance of power in the region  Countries have taken note that the tide in the South China Sea is in China's favor, and they are making their strategic calculations accordingly  This hurts U S  interests in the region  Up through 2014, U S  concern over maritime territorial and EEZ disputes involving China centered more on their potential for causing tension, incidents, and a risk of conflict between China and its neighbors in the region, including U S  allies Japan and the Philippines and emerging partner states such as Vietnam  While that concern remains, particularly regarding the potential for a conflict between China and Japan involving the Senkaku Islands, U S  concern since 2014 (i e , since China's island-building activities in the Spratly Islands were first publicly reported) has shifted increasingly to how China's strengthening position in the SCS may be affecting the risk of a U S -China crisis or conflict in the SCS and the broader U S -Chinese strategic competition  A key issue for Congress is how the United States should respond to China's actions in the SCS and ECS—particularly its island-building and base-construction activities in the Spratly Islands—and to China's strengthening position in the SCS  A key oversight question for Congress is whether the Trump Administration has an appropriate strategy for countering China's "salami-slicing" strategy or gray zone operations for gradually strengthening its position in the SCS, for imposing costs on China for its actions in the SCS and ECS, and for defending and promoting U S  interests in the region  In considering how to respond to China's actions in the SCS and ECS, an initial step can be to review China's approach to the region  As stated earlier, in general, China's approach to the maritime disputes in the SCS and ECS, and to strengthening its position over time in the SCS, can be characterized as follows: China appears to have identified the assertion and defense of its maritime territorial claims in the SCS and ECS, and the strengthening of its position in the SCS, as important national goals  To achieve these goals, China appears to be employing an integrated, whole-of-society strategy that includes diplomatic, informational, economic, military, paramilitary/law enforcement, and civilian elements  In implementing this integrated strategy, China appears to be persistent, patient, tactically flexible, willing to expend significant resources, and willing to absorb at least some amount of reputational and other costs that other countries might seek to impose on China in response to China's actions  The above points raise a possible question as to how likely a U S  response might be to achieve U S  goals if it were one-dimensional rather than multidimensional or whole-of-government; halting or intermittent rather than persistent; insufficiently resourced; reliant on imposed costs that are not commensurate with the importance that China appears to have assigned to achieving its goals in the region, or some combination of these things  Potential general U S  goals in responding to China's actions in the SCS and ECS include but are not necessarily limited to the following, which are not mutually exclusive: fulfilling U S  security commitments in the Western Pacific, including treaty commitments to Japan and the Philippines; maintaining and enhancing the U S -led security architecture in the Western Pacific, including U S  security relationships with treaty allies and partner states; maintaining a regional balance of power that is favorable to the United States and its allies and partners; de fending the principle of peaceful resolution of disputes , under which disputes between countries should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law, and resisting the emergence of an alternative "might-makes-right" approach to international affairs; defending the principle of freedom of the seas , meaning the rights, freedoms, and uses of the sea and airspace guaranteed to all nations in international law, including the interpretation held by the United States and many other countries concerning operational freedoms for military forces in EEZs; and preventing China from becoming a regional hegemon in East Asia, and potentially as part of that, preventing China from controlling or dominating the ECS or SCS  Potential specific U S  goals in responding to China's actions in the SCS and ECS include but are not necessarily limited to the following, which are not mutually exclusive: dissuading China from carrying out any additional base-construction activities that it might be planning for sites that it occupies in the SCS; dissuading China from moving any additional military personnel, equipment, and supplies to bases at sites that it occupies in the SCS, and persuading China to remove military personnel, equipment, and supplies that have already been moved to those bases; dissuading China from initiating island-building or base-construction activities at Scarborough Shoal; dissuading China from declaring an ADIZ over the SCS; encouraging China to reduce or end Chinese Coast Guard ships at the Senkaku Islands in the ECS; encouraging China to halt actions intended to put pressure against the small Philippine military presence at Second Thomas Shoal in the Spratly Islands (or against any other Philippine-occupied sites in the Spratly Islands); encouraging China to provide greater access by Philippine fisherman to waters surrounding Scarborough Shoal or in the Spratly Islands; encouraging China to adopt the U S /Western definition regarding freedom of the seas, including the freedom of U S  and other non-Chinese military vessels to operate freely in China's EEZ; and encouraging China to accept and abide by the July 2016 tribunal award in the SCS arbitration case involving the Philippines and China (see Appendix D )  In terms of identifying specific actions that are intended to support U S  policy goals, a key element would be to have a clear understanding of which actions are intended to support which goals, and to maintain an alignment of actions with policy goals  For example, U S  freedom of navigation (FON) operations, which often feature prominently in discussions of actual or potential U S  actions, can directly support a general goal of defending principle of freedom of the seas, but might support other goals only indirectly, marginally, or not at all  In assessing how the United States should respond to China's actions in the SCS, another factor that policymakers may consider is the potential contribution that could be made by allies such as Japan, the Philippines, Australia, the UK, and France, as well as potential or emerging partner countries such as Vietnam, Indonesia, and India  Most or all of the countries just mentioned have taken steps of one kind or another in response to China's actions in the SCS and ECS  For U S  policymakers, one key question is how effective those steps by allies and partner countries have been, whether those steps could be strengthened, and whether they should be undertaken independent of or in coordination with the United States  A second key question concerns the kinds of actions that Philippine president Rodrigo Duterte might be willing to take, given his largely nonconfrontational policy toward China regarding the SCS, and what implications Philippine reluctance to take certain actions may have for limiting or reducing the potential effectiveness of U S  options for responding to China's actions in the SCS  In apparent response to China's actions in the SCS and ECS, the United States during the Obama Administration took a number of actions, including the following: reiterating the U S  position on maritime territorial claims in the area in various public fora; expressing strong concerns about China's island-building and base-construction activities, and calling for a halt on such activities by China and other countries in the region; taking steps to improve the ability of the Philippines, Vietnam, Malaysia, and Indonesia to maintain maritime domain awareness (MDA) and patrol their EEZs, including the Southeast Asia Maritime Security Initiative (MSI), an initiative (since renamed the Indo-Pacific MSI) announced by the Obama Administration in May 2015 and subsequently legislated by Congress to provide $425 million in maritime security assistance to those four countries over a five-year period; taking steps to strengthen U S  security cooperation with Japan, the Philippines, Vietnam, and Singapore, including signing an agreement with the Philippines that provides U S  forces with increased access to Philippine bases, increasing the scale of joint military exercises involving U S  and Philippine forces, relaxing limits on sales of certain U S  arms to Vietnam, and operating U S  Navy P-8 maritime patrol aircraft from Singapore; expressing support for the idea of Japanese patrols in the SCS; and stating that the United States would support a multinational maritime patrol of the SCS by members of ASEAN  Some observers, both during and after the Obama Administration, have criticized the Obama Administration for not doing enough to counter China's actions in the SCS and ECS  In particular, they have argued that the Obama Administration did not react strongly enough to China's occupation of Scarborough Shoal in 2012; react strongly enough to China's island-building and base-construction activities in the Spratly Islands starting around December 2013; do enough in terms of conducting and offering sufficiently clear and strong legal rationales for U S  freedom of navigation (FON) operations in the SCS; do enough to publicize, rhetorically support, and enforce the July 2016 tribunal award in the SCS arbitration case involving the Philippines and China; and impose sufficiently strong costs on China's for its actions in the SCS and ECS  As a result of the above, these critics have argued, the Obama Administration in effect sent a message to China that the United States would not strongly oppose China's actions in the SCS and ECS—a message, these critics have argued, that may have encouraged and accelerated China's actions  Supporters of the Obama Administration's actions in response to China's actions in the SCS and ECS have argued that those actions were substantial and proportionate to China's actions and successful in deterring China from initiating island-building and base-construction activities at Scarborough Shoal; having U S  military aircraft disregard the ADIZ that China declared over the ECS, and in deterring China from declaring an ADIZ over the SCS; imposing political and reputational costs on China for its actions in the ECS and SCS during this time; and working with regional allies and partners to impose costs on China and strengthen the U S -led security architecture for the region  In addition to continuing to implement the above-mentioned Indo-Pacific MSI and conducting recurring freedom of navigation (FON) operations in the SCS (see next section), the Trump Administration reportedly has taken other actions to promote U S  interests in that area  These steps include actions to increase U S  defense and intelligence cooperation with Vietnam and Indonesia, and U S  assistance to improve the maritime security capabilities of the two countries  A January 9, 2018, press report states the following: The United States has accused China of "provocative militarisation" of disputed areas in the South China Sea and will continue sending vessels to the region to carry out freedom-of-navigation patrols, according to a top US adviser on Asia policy  Brian Hook, a senior adviser to US Secretary of State Rex Tillerson, said on Tuesday [January 9] that the issue of the South China Sea was raised at all diplomatic and security dialogues between China and the US    "China's provocative militarisation of the South China Sea is one area where China is contesting international law  They are pushing around smaller states in ways that put a strain on the global system," Hook said during a media telephone conference  "We are going to back up freedom-of-navigation operations and let them know we will fly, sail and operate wherever international law allows "    "We strongly believe China's rise cannot come at the expense of the values and rule-based order  That order is the foundation of peace and stability in the Indo-Pacific and also around the world," Hook said  "When China's behaviour is out of step with these values and these rules we will stand up and defend the rule of law " A May 3, 2018, press report stated the following: The United States has raised concerns with China about its latest militarization of the South China Sea and there will be near-term and long-term consequences, the White House said on Thursday [May 3]  U S  news network CNBC reported on Wednesday that China had installed anti-ship cruise missiles and surface-to-air missile systems on three manmade outposts in the South China Sea  It cited sources with direct knowledge of U S  intelligence  Asked about the report, White House spokeswoman Sarah Sanders told a regular news briefing: "We're well aware of China's militarization of the South China Sea  We've raised concerns directly with the Chinese about this and there will be near-term and long-term consequences " Sanders did not say what the consequences might be  On May 23, 2018, DOD announced that it was disinviting China from the 2018 RIMPAC (Rim of the Pacific) exercise  RIMPAC is a U S -led, multilateral naval exercise in the Pacific involving naval forces from more than two dozen countries that is held every two years  At DOD's invitation, China participated in the 2014 and 2016 RIMPAC exercises  DOD had invited China to participate in the 2018 RIMPAC exercise, and China had accepted that invitation  Observers who have argued for the United States to take stronger actions in response to China's actions in the ECS and SCS have argued that the United States should, among other things, not invite China to participate in the 2018 RIMPAC exercise, on the grounds that doing so would in effect reward China for its recent actions in the ECS and SCS  They have also argued that the value to the United States and its allies of information gained from observing Chinese naval forces operate during the exercise would be outweighed by the value to China of information that China would gain from observing U S  and other allied and partner navies operate during the exercise  After DOD had issued the invitation to China to participate in the 2018 RIMPAC exercise, these observers argued that the invitation should be withdrawn  Supporters of having China participate in RIMPAC exercises have argued that they are valuable for maintaining a constructive working relationship with China's navy—something, they argue, that could be of particular value if there were a U S -Chinese incident at sea or a U S -China crisis over some issue  They have also argued that China's participation in RIMPAC exercises provides opportunities to encourage China's navy to adopt U S  and Western norms relating to issues such as freedom of the seas and avoidance of incidents at sea, and that the value to the United States and its allies of information gained from observing China's naval forces operate during the exercise is not outweighed by value to China of the information gained by China from observing U S , allied, and partner navies operate during the exercises, particularly since China could observe the exercise using intelligence-gathering ships or perhaps other means, even without participating in the exercise  A statement from DOD about the withdrawal of the invitation for China to participate in the 2018 RIMPAC exercise states the following: The United States is committed to a free and open Indo-Pacific  China's continued militarization of disputed features in the South China Sea only serve to raise tensions and destabilize the region  As an initial response to China's continued militarization of the South China Sea we have disinvited the PLA Navy from the 2018 Rim of the Pacific (RIMPAC) Exercise  China's behavior is inconsistent with the principles and purposes of the RIMPAC exercise  We have strong evidence that China has deployed anti-ship missiles, surface-to-air missile (SAM) systems, and electronic jammers to contested features in the Spratly Islands region of the South China Sea  China's landing of bomber aircraft at Woody Island has also raised tensions  While China has maintained that the construction of the islands is to ensure safety at sea, navigation assistance, search and rescue, fisheries protection, and other non-military functions the placement of these weapon systems is only for military use  We have called on China to remove the military systems immediately and to reverse course on the militarization of disputed South China Sea features  We believe these recent deployments and the continued militarization of these features is a violation of the promise that President Xi made to the United States and the World not to militarize the Spratly Islands  A May 23, 2018, press report states the following: The Pentagon rescinded an invitation to China to participate in an international military exercise in the Pacific Ocean next month, signaling disapproval to Beijing for what U S  officials say is its refusal to stop militarizing South China Sea islands  Defense Secretary Jim Mattis, after weeks of internal debate within the Pentagon, concluded that China shouldn't be allowed to participate in the American-led biennial Rim of the Pacific exercise, slated to begin in June, according to U S  officials  The invitation's withdrawal hasn't been previously disclosed  Chinese officials in Washington were notified of the decision Wednesday morning, said the U S  officials  China's top diplomat, State Councilor Wang Yi, criticized the Pentagon's decision in comments while visiting the State Department Wednesday  "We find that a very unconstructive move, nonconstructive move," Mr  Wang told reporters  "We hope the U S  will change such a negative mindset "    After The Wall Street Journal published [an initial version of] this article on Wednesday [May 23], Pentagon officials called their move "an initial response" to China's militarization of the islands  "We have strong evidence that China has deployed anti-ship missiles, surface-to-air missile (SAM) systems, and electronic jammers to contested features in the Spratly Islands region of the South China Sea," Lt  Col  Chris Logan, a Pentagon spokesman, said in a statement  "China's landing of a bomber aircraft at Woody Island has also raised tensions " Eric Sayers, of the Center for Strategic and International Studies, a think tank in Washington, and a former adviser to U S  Pacific Command, said the Pentagon move "will be a minor blow to the PLA Navy's prestige " He said, "It will also send the signal to Beijing that China cannot expect to continue to militarize the South China Sea and still be treated as a welcomed member of the international maritime community " But, Mr  Sayers added, the Trump administration must still develop an overall strategy in the Indo- Pacific region if it hopes to influence the maritime domain there  "Thus far, there is little evidence or new initiatives one can point to that distinguishes this administration's regional policy from the previous one," he said  The decision to rescind the invitation came after more than a month of internal Trump administration debate about China, including the timing of any rescission, the officials said, especially given the trade talks  Top State Department officials initially advised against rescinding the invitation, hoping that diplomatic interventions would convince China to at least remove missiles from those islands, said the U S  officials  State Department officials didn't immediately respond to a request for comment  But Pentagon officials held the view that it was time to impose a cost on the Chinese for their behavior in the South China Sea, the officials said  A June 3, 2018, press report states the following: The United States is considering intensified naval patrols in the South China Sea in a bid to challenge China's growing militarization of the waterway, actions that could further raise the stakes in one of the world's most volatile areas  The Pentagon is weighing a more assertive program of so-called freedom-of-navigation operations close to Chinese installations on disputed reefs, two U S  officials and Western and Asian diplomats close to discussions said  The officials declined to say how close they were to finalizing a decision  Such moves could involve longer patrols, ones involving larger numbers of ships or operations involving closer surveillance of Chinese facilities in the area, which now include electronic jamming equipment and advanced military radars  U S  officials are also pushing international allies and partners to increase their own naval deployments through the vital trade route as China strengthens its military capabilities on both the Paracel and Spratly islands, the diplomats said, even if they stopped short of directly challenging Chinese holdings  "What we have seen in the last few weeks is just the start, significantly more is being planned," said one Western diplomat, referring to a freedom of navigation patrol late last month that used two U S  ships for the first time  "There is a real sense more needs to be done "… Critics have said the patrols have little impact on Chinese behavior and mask the lack of a broader strategy to deal with China's growing dominance of the area…  U S  Defence Secretary Jim Mattis warned in Singapore on Saturday [June 2] that China's militarization of the South China Sea was now a "reality" but that Beijing would face unspecified consequences  A November 13, 2018, press report states the following: National security adviser John Bolton said [on November 13] the U S  would oppose any agreements between China and other claimants to the South China Sea that limit free passage to international shipping, and that American naval vessels would continue to sail through those waters  Mr  Bolton's remarks served as a warning to Southeast Asian leaders, who are preparing for a regional summit in Singapore this week, and particularly for the Philippines, which is now in talks with Beijing about jointly exploring natural resources in the contested area  In meetings to develop a code of conduct this year for the South China Sea, China has tried to secure a veto over Southeast Asian nations hosting military exercises with other countries in the disputed waters…  Mr  Bolton said the U S  welcomes the negotiations in principle  In a media briefing in Singapore, he described them as a plus  But he stressed that "the outcome has to be mutually acceptable, and also has to be acceptable to all the countries that have legitimate maritime and naval rights to transit and other associate rights that we don't want to see infringed " Some observers have expressed concern that the Trump Administration's focus from time to time on North Korea has sometimes distracted the Administration from the situation in the SCS, permitting China to more easily increase or consolidate its gains in the area  Other observers have expressed concern that the Trump Administration's focus on reducing the U S  trade deficit with China could distract the Administration from other issues relating to China, including China's actions in the SCS  At a September 17, 2015, hearing before the Senate Armed Services Committee on DOD's maritime security strategy in the Asia-Pacific region, DOD witnesses stated, in response to questioning, that the United States had not conducted a freedom of navigation (FON) operation within 12 miles of a Chinese-occupied land feature in the Spratly Islands since 2012  This led to a public debate in the United States (that was watched by observers in the Western Pacific) over whether the United States should soon conduct such an operation, particularly given China's occupation of Scarborough Shoal in 2012 and China's island-building activities at sites that its occupies in the SCS  Opponents argued that conducting a FON operation could antagonize China and give China an excuse to militarize its occupied sites in the SCS  Supporters argued that not conducting such an operation was inconsistent with the underlying premise of the U S  FON program that navigational rights which are not regularly exercised are at risk of atrophy; that it was inconsistent with the U S  position of taking no position on competing claims to sovereignty over disputed land features in the SCS (because it tacitly accepts Chinese sovereignty over those features); that it effectively rewarded (rather than imposed costs on) China for its assertive actions in the SCS, potentially encouraging further such actions; and that China intends to militarize its occupied sites in the Spratly Islands, regardless of whether the United States conducts FON operations there  The Obama Administration reportedly considered, for a period of weeks, whether to conduct such an operation in the near future  Some observers argued that the Obama Administration's extended consideration of the question, and the press reporting on that deliberation, unnecessarily raised the political stakes involved in whether to conduct what, in the view of these observers, should have been a routine FON operation  The Obama Administration decided in favor of conducting the operation, and the operation reportedly was conducted near the Chinese-occupied site of Subi Reef on October 27, 2015 (which was October 26, 2015, in Washington, DC), using the U S  Navy destroyer Lassen in conjunction with a U S  Navy P-8 maritime patrol aircraft flying overhead  Statements from executive branch sources about the operation that were reported in the press created some confusion among observers regarding how the operation was conducted and what rationale the Obama Administration was citing as the legal basis for the operation  In particular, there was confusion among observers as to whether the United States was defending the operation as an expression of the right of innocent passage —a rationale, critics argued, that would muddle the legal message sent by the operation, possibly implying U S  acceptance of Chinese sovereignty over Subi Reef, which would inadvertently turn the operation into something very different and perhaps even self-defeating from a U S  perspective  A second FON operation in the SCS was conducted on January 29, 2016, near Triton Island in the Paracel Islands, by the U S  Navy destroyer C urtis Wilber   A third FON operation in the SCS was conducted on May 10, 2016, in which the destroyer William P  Lawrence conducted an innocent passage within 12 nautical miles of Fiery Cross Reef, a Chinese-occupied feature in the Spratly Islands that is also claimed by Taiwan, Vietnam, and the Philippines  A fourth FON operation in the SCS occurred on October 21, 2016, involving the destroyer Decatur operating near the Paracel Islands  This was the final announced FON operation in the South China Sea during the Obama Administration  As of early May 2017, the Trump Administration had not conducted any announced FON operations in the SCS, and DOD reportedly had turned down proposals from the Navy to conduct such operations, prompting some observers to argue that the Trump Administration, in its first few months in office, appeared to be more hesitant about conducting FON operations in the SCS than the Obama Administration was during its final 15 months in office (i e , since October 2015)  DOD officials stated that in spite of the absence of announced FON operations in the SCS, U S  policy on such operations had not changed, and that the United States intended to conduct FON operations in the SCS in the near future  As shown in Table 1 , the Trump Administration conducted an FON operation in the SCS on May 25, 2017, and has conducted multiple additional FON operations in the SCS since then  In general, China has objected to each of these operations and has stated that it sent Chinese Navy ships in each case to warn the U S  Navy ships to leave the areas in question  The FON operation conducted on September 30, 2018, led to an intense encounter, discussed elsewhere in this report, between the U S  Navy ship that conducted the operation (the USS Decatur [DDG-73]) and the Chinese Navy ship that was sent to warn it off  In addition to conducting FON operations in the Spratly and Paracel islands, U S  Navy ships have steamed through the Taiwan Strait on multiple occasions, and Air Force long-range bombers have periodically conducted flyovers above the ECS and SCS  A September 1, 2017, press report states that The Pentagon for the first time has set a schedule of naval patrols in the South China Sea in an attempt to create a more consistent posture to counter China's maritime claims there, injecting a new complication into increasingly uneasy relations between the two powers  The U S  Pacific Command has developed a plan to conduct so-called freedom-of-navigation operations two to three times over the next few months, according to several U S  officials, reinforcing the U S  challenge to what it sees as excessive Chinese maritime claims in the disputed South China Sea  Beijing claims sovereignty over all South China Sea islands and their adjacent waters  The plan marks a significant departure from such military operations in the region during the Obama administration, when officials sometimes struggled with when, how and where to conduct those patrols  They were canceled or postponed based on other political factors after what some U S  officials said were contentious internal debates  The idea behind setting a schedule contrasts with the more ad hoc approach to conducting freedom-of-navigation operations, known as "fonops" in military parlance, and establish more regularity in the patrols  Doing so may help blunt Beijing's argument that the patrols amount to a destabilizing provocation each time they occur, U S  officials said     Officials described the new plan as a more predetermined way of conducting such patrols than in the past, though not immutable  The plan is in keeping with the Trump administration's approach to military operations, which relies on giving commanders leeway to determine the U S  posture  In keeping with policies against announcing military operations before they occur, officials declined to disclose where and when they would occur     In a new facet, some freedom-of-navigation patrols may be "multi-domain" patrols, using not only U S  Navy warships but U S  military aircraft as well  Thus far, there have been three publicly disclosed freedom-of-navigation operations under the Trump administration  The last one was conducted on Aug  10 by the navy destroyer, the USS John S  McCain, which days later collided with a cargo ship, killing 10 sailors  That patrol around Mischief Reef—one of seven fortified artificial islands that Beijing has built in the past three years in the disputed Spratlys archipelago—also included an air component  According to U S  officials, two P-8 Poseidon reconnaissance aircraft flew above the McCain in a part of the operation that hadn't been previously disclosed  More navigation patrols using warships likely now will include aircraft overhead, they said " An October 12, 2017, blog post states the following: The [reported October 10, 2017,] FONOP is the fourth in just five months and demonstrates that the Trump administration is accepting a higher frequency for these operations  After the Obama administration initiated South China Sea operations in October 2015, beginning with challenges to Chinese and other South China Sea claimant state possessions in the Spratly group, it only carried out three additional operations in 2016  Critics of the Obama administration's approach to the U S  Navy's freedom of navigation operations in the South China Sea suggested that the relative infrequency and perception that the operations were subject of the overall ebbs and flows of the U S -China bilateral relationship undermined their stated utility as legal signaling tools  Even with stepped up FONOPs this year, the Trump administration hasn't changed the fundamentals of U S  South China Sea policy, which continues to remain agnostic about sovereignty claims and focuses exclusively on freedom of navigation, overflight, and the preservation of international law and order in the region  With the exception of USS Dewey's May 2017 FONOP around Mischief Reef—notable for being the first FONOP this year—successive Trump administration FONOPs have attracted comparatively less attention in the press  Proponents of these operations in the United States have argued that they should not be seen as noteworthy events, but more as a fact of life in the South China Sea—a reminder of the U S  Navy's forward presence in the area and its commitment to freedom of navigation  A corollary of the increased pace of operations this year is that a slowdown in U S  FONOPs could appear to be motivated by broader diplomatic concerns in the bilateral U S -China relationship  In assessing U S  FON operations that take place within 12 nautical miles of Chinese-occupied sites in the SCS, one question relates to whether to conduct such operations, exactly where, and how often  A second question relates to the rationale that is cited as the legal basis for conducting them  Regarding this second question, one U S  specialist on international law of the sea states the following regarding three key legal points in question (emphasis added): Regarding features in the water whose sovereignty is in dispute, "Every feature occupied by China is challenged by another claimant state, often with clearer line of title from Spanish, British or French colonial rule  The nation, not the land, is sovereign, which is why there is no territorial sea around Antarctica—it is not under the sovereignty of any state, despite being a continent  As the United States has not recognized Chinese title to the features, it is not obligated to observe requirements of a theoretical territorial sea  Since the territorial sea is a function of state sovereignty of each rock or island, and not a function of simple geography, if the United States does not recognize any state having title to the feature, then it is not obligated to observe a theoretical territorial sea and may treat the feature as terra nullius   Not only do U S  warships have a right to transit within 12 nm [nautical miles] of Chinese features, they are free to do so as an exercise of high seas freedom under article 87 of the Law of the Sea Convention, rather than the more limited regime of innocent passage  Furthermore, whereas innocent passage does not permit overflight, high seas freedoms do, and U S  naval aircraft lawfully may overfly such features     More importantly, even assuming that one or another state may have lawful title to a feature, other states are not obligated to confer upon that nation the right to unilaterally adopt and enforce measures that interfere with navigation, until lawful title is resolved  Indeed, observing any nation's rules pertaining to features under dispute legitimizes that country's claim and takes sides " Regarding features in the water whose sovereignty has been resolved, "It is unclear whether features like Fiery Cross Reef are rocks or merely low-tide elevations [LTEs] that are submerged at high tide, and after China has so radically transformed them, it may now be impossible to determine their natural state  Under the terms of the law of the sea, states with ownership over naturally formed rocks are entitled to claim a 12 nm territorial sea  On the other hand, low-tide elevations in the mid-ocean do not qualify for any maritime zone whatsoever  Likewise, artificial islands and installations also generate no maritime zones of sovereignty or sovereign rights in international law, although the owner of features may maintain a 500-meter vessel traffic management zone to ensure navigational safety " Regarding features in the water whose sovereignty has been resolved and which do qualify for a 12-nautical-mile territorial sea, " Warships and commercial vessels of all nations are entitled to conduct transit in innocent passage in the territorial sea of a rock or island of a coastal state, although aircraft do not enjoy such a right " These three legal points appear to create at least four options for the rationale to cite as the legal basis for conducting an FON operation within 12 miles of Chinese-occupied sites in the SCS: One option would be to state that since there is a dispute as to the sovereignty of the site or sites in question, that site or those sites are terra nullius , that the United States consequently is not obligated to observe requirements of a theoretical territorial sea, and that U S  warships thus have a right to transit within 12 nautical miles of the site or sites as an exercise of high seas freedom under article 87 of the Law of the Sea Convention  A second option, if the site or sites were LTEs prior to undergoing land reclamation, would be to state that the site or sites are not entitled to a 12-nautical-mile territorial sea, and that U S  warships consequently have a right to transit within 12 nautical miles as an exercise of high seas freedom  A third option would be to state that the operation was being conducted under the right of innocent passage within a 12-nautical-mile territorial sea  A fourth option would be to not provide a public rationale for the operation, so as to create uncertainty for China (and perhaps other observers) as to exact U S  legal rationale  If the fourth option is not taken, and consideration is given to selecting from among the first three options, then it might be argued that choosing the second option might inadvertently send a signal to observers that the legal point associated with the first option was not being defended, and that choosing the third option might inadvertently send a signal to observers that the legal points associated with the first and second options were not being defended  Regarding the FON operation conducted on May 24, 2017, near Mischief Reef, the U S  specialist on international law of the sea quoted above states the following: This was the first public notice of a freedom of navigation (FON) operation in the Trump administration, and may prove the most significant yet for the United States because it challenges not only China's apparent claim of a territorial sea around Mischief Reef, but in doing so questions China's sovereignty over the land feature altogether     The Pentagon said the U S  warship did a simple military exercise while close to the artificial island—executing a "man overboard" rescue drill  Such drills may not be conducted in innocent passage, and therefore indicate the Dewey exercised high seas freedoms near Mischief Reef  The U S  exercise of high seas freedoms around Mischief Reef broadly repudiates China's claims of sovereignty over the feature and its surrounding waters  The operation stands in contrast to the flubbed transit by the USS Lassen near Subi Reef on October 27, 2015, when it appeared the warship conducted transit in innocent passage and inadvertently suggested that the feature generated a territorial sea (by China or some other claimant)  That operation was roundly criticized for playing into China's hands, with the muddy legal rationale diluting the strategic message  In the case of the Dewey, the Pentagon made clear that it did not accept a territorial sea around Mischief Reef—by China or any other state  The United States has shoehorned a rejection of China's sovereignty over Mischief Reef into a routine FON operation  Mischief Reef is not entitled to a territorial sea for several reasons  First, the feature is not under the sovereignty of any state  Mid-ocean low-tide elevations are incapable of appropriation, so China's vast port and airfield complex on the feature are without legal effect  The feature lies 135 nautical miles from Palawan Island, and therefore is part of the Philippine continental shelf  The Philippines enjoys sovereign rights and jurisdiction over the feature, including all of its living and non-living resources     Second, even if Mischief Reef were a naturally formed island, it still would not be entitled to a territorial sea until such time as title to the feature was determined  Title may be negotiated, arbitrated or adjudicated through litigation  But mere assertion of a claim by China is insufficient to generate lawful title  (If suddenly a new state steps forward to claim the feature—Britain, perhaps, based on colonial presence—would it be entitled to the presumption of a territorial sea?) Even Antarctica, an entire continent, does not automatically generate a territorial sea  A territorial sea is a function of state sovereignty, and until sovereignty is lawfully obtained, no territorial sea inures  Third, no state, including China, has established baselines around Mischief Reef in accordance with article 3 of UNCLOS  A territorial sea is measured from baselines; without baselines, there can be no territorial sea  What is the policy rationale for this construction? Baselines place the international community on notice that the coastal state has a reasonable and lawful departure from which to measure the breadth of the territorial sea  Unlike the USS Lassen operation, which appeared to be a challenge to some theoretical or "phantom" territorial sea, the Dewey transit properly reflects the high seas nature of the waters immediately surrounding Mischief Reef as high seas  As a feature on the Philippine continental shelf, Mischief Reef is not only incapable of ever generating a territorial sea but also devoid of national airspace  Aircraft of all nations may freely overfly Mischief Reef, just as warships and commercial ships may transit as close to the shoreline as is safe and practical  The Dewey transit makes good on President Obama's declaration in 2016 that the Annex VII tribunal for the Philippines and China issued a "final and binding" decision     The United States will include the Dewey transit on its annual list of FON operations for fiscal year 2017, which will be released in the fourth quarter or early next year  How will the Pentagon account for the operation—what was challenged? The Dewey challenged China's claim of "indisputable sovereignty" to Mischief Reef as one of the features in the South China Sea, and China's claim of "adjacent" waters surrounding it  This transit cuts through the diplomatic dissembling that obfuscates the legal seascape and is the most tangible expression of the U S  view that the arbitration ruling is "final and binding " Regarding this same FON operation, two other observers stated the following: The Dewey's action evidently challenged China's right to control maritime zones adjacent to the reef—which was declared by the South China Sea arbitration to be nothing more than a low tide elevation on the Philippine continental shelf  The operation was hailed as a long-awaited "freedom of navigation operation" (FONOP) and "a challenge to Beijing's moves in the South China Sea," a sign that the United States will not accept "China's contested claims" and militarization of the Spratlys, and a statement that Washington "will not remain passive as Beijing seeks to expand its maritime reach " Others went further and welcomed this more muscular U S  response to China's assertiveness around the Spratly Islands to challenge China's "apparent claim of a territorial sea around Mischief Reef…[as well as] China's sovereignty over the land feature" itself  But did the Dewey actually conduct a FONOP? Probably—but maybe not  Nothing in the official description of the operation or in open source reporting explicitly states that a FONOP was in fact conducted  Despite the fanfare, the messaging continues to be muddled  And that is both unnecessary and unhelpful  In this post, we identify the source of ambiguity and provide an overview of FONOPs and what distinguishes them from the routine practice of freedom of navigation  We then explain why confusing the two is problematic—and particularly problematic in the Spratlys, where the practice of free navigation is vastly preferable to the reactive FONOP  FONOPs should continue in routine, low-key fashion wherever there are specific legal claims to be challenged (as in the Paracel Islands, the other disputed territories in the SCS); they should not be conducted—much less hyped up beyond proportion—in the Spratlys  Instead, the routine exercise of freedom of navigation is the most appropriate way to use the fleet in support of U S  and allied interests         was the Dewey's passage a FONOP designed to be a narrow legal challenge between the US and Chinese governments? Or was it a rightful and routine exercise of navigational freedoms intended to signal reassurance to the region and show U S  resolve to defend the rule sets that govern the world's oceans? Regrettably, the DOD spokesman's answer was not clear  The distinction is not trivial     The U S  should have undertaken, and made clear that it was undertaking, routine operations to exercise navigational freedoms around Mischief Reef—rather than (maybe) conducting a FONOP  The first problem with conducting FONOP operations at Mischief Reef or creating confusion on the point is that China has made no actual legal claim that the U S  can effectively challenge  In fact, in the Spratlys, no state has made a specific legal claim about its maritime entitlements around the features it occupies  In other words, not only are there no "excessive claims," there are no clear claims to jurisdiction over water space at all  Jurisdictional claims by a coastal state begin with an official announcement of baselines—often accompanied by detailed geographic coordinates—to put other states on notice of the water space the coastal state claims as its own  China has made several ambiguous claims over water space in the South China Sea  It issued the notorious 9-dashed line map, for instance, and has made cryptic references that eventually it might claim that the entire Spratly Island area generates maritime zones as if it were one physical feature  China has a territorial sea law that requires Chinese maritime agencies only to employ straight baselines (contrary to international law)  And it formally claimed straight baselines all along its continental coastline, in the Paracels, and for the Senkaku/Diaoyu Islands, which China claims and Japan administers  All of these actions are contrary to international law and infringe on international navigational rights  These have all been subject to American FONOPs in the past—and rightly so  They are excessive claims  But China has never specified baselines in the Spratlys  Accordingly, no one knows for sure where China will claim a territorial sea there  So for now, since there is no specific legal claim to push against, a formal FONOP is the wrong tool for the job  The U S  Navy can and should simply exercise the full, lawful measure of high seas freedoms in and around the Spratly Islands  Those are the right tools for the job where no actual coastal state claim is being challenged  Second, the conflation of routine naval operations with the narrow function of a formal FONOP needlessly politicizes this important program, blurs the message to China and other states in the region, blunts its impact on China's conduct, and makes the program less effective in other areas of the globe  This conflation first became problematic with the confused and confusing signaling that followed the FONOP undertaken by the USS Lassen in the fall of 2015  Afterward, the presence or absence of a FONOP dominated beltway discussion about China's problematic conduct in the South China Sea and became the barometer of American commitment and resolve in the region  Because of this discussion, FONOPs became reimagined in the public mind as the only meaningful symbol of U S  opposition to Chinese policy and activity in the SCS  In 2015 and 2016 especially, FONOPs were often treated as if they were the sole available operational means to push back against rising Chinese assertiveness  This was despite a steady U S  presence in the region for more than 700 ship days a year and a full schedule of international exercises, ample intelligence gathering operations, and other important naval demonstrations of U S  regional interests  In consequence, we should welcome the apparent decision not to conduct a FONOP around Scarborough Shoal—where China also never made any clear baseline or territorial sea claim  If U S  policy makers intend to send a signal to China that construction on or around Scarborough would cross a red line, there are many better ways than a formal FONOP to send that message     The routine operations of the fleet in the Pacific theater illustrate the crucial—and often misunderstood—difference between a formal FONOP and operations that exercise freedoms of navigation  FONOPs are not the sole remedy to various unlawful restrictions on navigational rights across the globe, but are instead a small part of a comprehensive effort to uphold navigational freedoms by practicing them routinely  That consistent practice of free navigation, not the reactive FONOP, is the policy best suited to respond to Chinese assertiveness in the SCS  This is especially true in areas such as the Spratly Islands where China has made no actual legal claims to challenge  As mentioned earlier, in terms of identifying specific actions that are intended to support U S  policy goals, a key element would be to have a clear understanding of which actions are intended to support which goals, and to maintain an alignment of actions with policy goals  U S  freedom of navigation (FON) operations can directly support a general goal of defending principle of freedom of the seas, but might support other goals only indirectly, marginally, or not at all  Some of the actions taken to date by the United States, as well as some of those suggested by observers who argue in favor of stronger U S  actions, are intended to impose costs on China for conducting certain activities in the ECS and SCS, with the aim of persuading China to stop or reverse those activities  Cost-imposing actions can come in various forms (e g , reputational/political, institutional, or economic)  Although the potential additional or strengthened actions often relate to the Western Pacific, potential cost-imposing actions do not necessarily need to be limited to that region  As a hypothetical example for purposes of illustrating the point, one potential cost-imposing action might be for the United States to respond to unwanted Chinese activities in the ECS or SCS by moving to suspend China's observer status on the Arctic Council  Expanding the potential scope of cost-imposing actions to regions beyond the Western Pacific can make it possible to employ elements of U S  power that cannot be fully exercised if the examination of potential cost-imposing strategies is confined to the Western Pacific  It may also, however, expand, geographically or otherwise, areas of tension or dispute between the United States and China  Actions to impose costs on China can also impose costs, or lead to China imposing costs, on the United States and its allies and partners  Whether to implement cost-imposing actions thus involves weighing the potential benefits and costs to the United States and its allies and partners of implementing those actions, as well as the potential consequences to the United States and its allies and partners of not implementing those actions  Some observers argue that the current response to China's actions in the SCS is inadequate, and have proposed taking stronger actions  Appendix G presents a bibliography of some recent writings by these observers  In general, actions proposed by these observers include (but are not limited to) the following: making a statement (analogous to the one that U S  leaders have made concerning the Senkaku islands and the U S -Japan treaty on mutual cooperation and security) that clarifies what the United States would do under the U S -Philippines mutual defense treaty in the event of certain Chinese actions at Scarborough Shoal, Second Thomas Shoal, or elsewhere in the SCS; further increasing and/or accelerating actions to strengthen the capacity of allied and partner countries in the region to maintain maritime domain awareness (MDA) and defend their maritime claims by conducting coast guard and/or navy patrols of claimed areas; further increasing U S  Navy operations in the region, including sending U S  Navy ships more frequently to waters within 12 nautical miles of Chinese-occupied sites in the SCS, and conducting FON operations in the SCS jointly with navy ships of U S  allies; further strengthening U S  security cooperation with allied and partner countries in the region, and with India, to the point of creating a coalition for balancing China's assertiveness; and taking additional actions to impose costs on China for its actions in its near-seas region, such as inviting Taiwan to participate in the 2018 RIMPAC exercise  As mentioned earlier, some observers remain concerned that maritime territorial disputes in the ECS and SCS could lead to a crisis or conflict between China and a neighboring country such as Japan or the Philippines, and that the United States could be drawn into such a crisis or conflict as a result of obligations the United States has under bilateral security treaties with Japan and the Philippines  Regarding this issue, potential oversight questions for Congress include the following: Have U S  officials taken appropriate and sufficient steps to help reduce the risk of maritime territorial disputes in the SCS and ECS escalating into conflicts? Do the United States and Japan have a common understanding of potential U S  actions under Article IV of the U S -Japan Treaty on Mutual Cooperation and Security (see Appendix B ) in the event of a crisis or conflict over the Senkaku Islands? What steps has the United States taken to ensure that the two countries share a common understanding? Do the United States and the Philippines have a common understanding of how the 1951 U S -Philippines mutual defense treaty applies to maritime territories in the SCS that are claimed by both China and the Philippines, and of potential U S  actions under Article IV of the treaty (see Appendix B ) in the event of a crisis or conflict over the territories? What steps has the United States taken to ensure that the two countries share a common understanding? Aside from public statements, what has the United States communicated to China regarding potential U S  actions under the two treaties in connection with maritime territorial disputes in the SCS and ECS? Has the United States correctly balanced ambiguity and explicitness in its communications to various parties regarding potential U S  actions under the two defense treaties? How do the two treaties affect the behavior of Japan, the Philippines, and China in managing their territorial disputes? To what extent, for example, would they help Japan or the Philippines resist potential Chinese attempts to resolve the disputes through intimidation, or, alternatively, encourage risk-taking or brinksmanship behavior by Japan or the Philippines in their dealings with China on the disputes? To what extent do they deter or limit Chinese assertiveness or aggressiveness in their dealings with Japan the Philippines on the disputes? Has the DOD adequately incorporated into its planning crisis and conflict scenarios arising from maritime territorial disputes in the SCS and ECS that fall under the terms of the two treaties? Another issue for Congress—particularly the Senate—is the potential impact of China's actions in the SCS and ECS on the question of whether the United States should become a party to the United Nations Convention on the Law of the Sea (UNCLOS)  UNCLOS and an associated 1994 agreement relating to implementation of Part XI of the treaty (on deep seabed mining) were transmitted to the Senate on October 6, 1994  In the absence of Senate advice and consent to adherence, the United States is not a party to UNCLOS or the associated 1994 agreement  During the 112 th Congress, the Senate Foreign Relations Committee held four hearings on the question of whether the United States should become a party to the treaty on May 23, June 14 (two hearings), and June 28, 2012  Supporters of the United States becoming a party to UNCLOS argue or might argue one or more of the following: The treaty's provisions relating to navigational rights, including those in EEZs, reflect the U S  position on the issue; becoming a party to the treaty would help lock the U S  perspective into permanent international law  Becoming a party to the treaty would give the United States greater standing for participating in discussions relating to the treaty—a "seat at the table"—and thereby improve the U S  ability to call on China to act in accordance with the treaty's provisions, including those relating to navigational rights, and to defend U S  interpretations of the treaty's provisions, including those relating to whether coastal states have a right under UNCLOS to regulate foreign military activities in their EEZs  At least some of the ASEAN member states want the United States to become a member of UNCLOS, because they view it as the principal framework for resolving maritime territorial disputes  Relying on customary international law to defend U S  interests in these issues is not sufficient, because it is not universally accepted and is subject to change over time based on state practice  Opponents of the United States becoming a party to UNCLOS argue or might argue one or more of the following: China's ability to cite international law (including UNCLOS) in defending its position on whether coastal states have a right to regulate foreign military activities in their EEZs shows that UNCLOS does not adequately protect U S  interests relating to navigational rights in EEZs; the United States should not help lock this inadequate description of navigational rights into permanent international law by becoming a party to the treaty  The United States becoming a party to the treaty would do little to help resolve maritime territorial disputes in the SCS and ECS, in part because China's maritime territorial claims, such as those depicted in the map of the nine-dash line, predate and go well beyond what is allowed under the treaty and appear rooted in arguments that are outside the treaty  The United States can adequately support the ASEAN countries and Japan in matters relating to maritime territorial disputes in the SCS and ECS in other ways, without becoming a party to the treaty  The United States can continue to defend its positions on navigational rights on the high seas by citing customary international law, by demonstrating those rights with U S  naval deployments (including those conducted under the FON program), and by having allies and partners defend the U S  position on the EEZ issue at meetings of UNCLOS parties  In H R  5515 as reported by the House Armed Services Committee ( H Rept  115-676 of May 15, 2018), Section 1254 states the following: SEC  1254  Modification, redesignation, and extension of Southeast Asia Maritime Security Initiative  (a) Modification and redesignation — (1) IN GENERAL —Subsection (a) of section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat  1073; 10 U S C  2282 note), as amended by section 1289 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat  2555), is further amended— (A) in paragraph (1), by striking "South China Sea" and inserting "South China Sea and Indian Ocean"; and (B) in paragraph (2), by striking "the 'Southeast Asia Maritime Security Initiative'" and inserting "the 'Indo-Pacific Maritime Security Initiative'"  (2) CONFORMING AMENDMENT —The heading of such section is amended to read as follows: "Sec  1263  Indo-Pacific Maritime Security Initiative "  (b) Covered countries —Subsection (e)(2) of such section is amended by adding at the end the following: "(D) India "  (c) Designation of additional countries —Such section is further amended— (1) in subsection (e)(1), by striking "subsection (f)" and inserting "subsection (g)"; (2) by redesignating subsections (f), (g), and (h) as subsections (g), (h), and (i), respectively; and (3) by inserting after subsection (e) the following: "(f) Inclusion of additional countries —The Secretary of Defense, with the concurrence of the Secretary of State, is authorized to include additional foreign countries under subsection (b) for purposes of providing assistance and training under subsection (a) and additional foreign countries under subsection (e)(2) for purposes of providing payment of incremental expenses in connection with training described in subsection (a)(1)(B) if, with respect to each such additional foreign country, the Secretary determines and certifies to the appropriate committees of Congress that it is important for increasing maritime security and maritime domain awareness in the Indo-Pacific region "  (d) Extension —Subsection (i) of such section, as redesignated, is amended by striking "September 30, 2020" and inserting "September 30, 2023"  On May 22, 2018, as part of its consideration of H R  5515 , the House agreed to by voice vote H Amdt  644 , an en bloc amendment including, inter alia, amendment number 91 as printed in H Rept  115-698 of May 21, 2018, providing for consideration of H R  5515   Amendment 91 added Section 1298, which states the following: SEC  1298  Modification to annual report on military and security developments involving the People's Republic of China  Paragraph (22) of section 1202(b) of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65; 10 U S C  113 note), as most recently amended by section 1261 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 131 Stat  1688), is further amended by striking "activities in the South China Sea" and inserting the following: ""activities— "(A) in the South China Sea; "(B) in the East China Sea, including in the vicinity of the Senkaku islands; and "(C) in the Indian Ocean region "  In S  2987 as reported by the Senate Armed Services Committee ( S Rept  115-262 of June 5, 2018), Section 1064 states the following: SEC  1064  United States policy with respect to freedom of navigation and overflight  (a) Declaration of policy —It is the policy of the United States to fly, sail, and operate throughout the oceans, seas, and airspace of the world wherever international law allows  (b) Implementation of policy —In furtherance of the policy set forth in subsection (a), the Secretary of Defense should— (1) plan and execute a robust series of routine and regular air and naval presence missions throughout the world and throughout the year, including for critical transportation corridors and key routes for global commerce; (2) in addition to the missions executed pursuant to paragraph (1), execute routine and regular air and maritime freedom of navigation operations throughout the year, in accordance with international law, including the use of expanded military options and maneuvers beyond innocent passage; and (3) to the maximum extent practicable, execute the missions pursuant to paragraphs (1) and (2) with regional partner countries and allies of the United States  Section 1241 of S  2987 as reported states the following: SEC  1241  Redesignation, expansion, and extension of Southeast Asia Maritime Security Initiative  (a) Redesignation as Indo-Pacific Maritime Security Initiative — (1) IN GENERAL —Subsection (a)(2) of section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (10 U S C  333 note) is amended by striking "the 'Southeast Asia Maritime Security Initiative'" and inserting "the 'Indo-Pacific Maritime Security Initiative'"  (2) CONFORMING AMENDMENT —The heading of such section is amended to read as follows: "SEC  1263  Indo-Pacific Maritime Security Initiative"  (b) Expansion — (1) EXPANSION OF REGION TO RECEIVE ASSISTANCE AND TRAINING —Subsection (a)(1) of such section is amended by inserting "and the Indian Ocean" after "South China Sea" in the matter preceding subparagraph (A)  (2) RECIPIENT COUNTRIES OF ASSISTANCE AND TRAINING GENERALLY —Subsection (b) of such section is amended— (A) in paragraph (2), by striking the comma at the end and inserting a period; and (B) by adding at the end the following new paragraphs: "(6) Bangladesh  "(7) Sri Lanka "  (3) COUNTRIES ELIGIBLE FOR PAYMENT OF CERTAIN INCREMENTAL EXPENSES —Subsection (e)(2) of such section is amended by adding at the end the following new subparagraph: "(D) India "  (c) Extension —Subsection (h) of such section is amended by striking "September 30, 2020" and inserting "December 31, 2025"  Regarding Section 1241, S Rept  115-262 states the following: Redesignation, expansion, and extension of Southeast AsiaMaritime Security Initiative (sec  1241) The committee recommends a provision that would amend section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92) to: redesignate the Southeast Asia Maritime Security Initiative as the Indo-Pacific Maritime Security Initiative; add Bangladesh and Sri Lanka as recipient countries of assistance and training; add India as a covered country eligible for payment of certain incremental expenses; and extend the authority under the section through December 31, 2025  The committee continues to strongly support efforts under the Southeast Asia Maritime Security Initiative aimed at enhancing the capabilities of regional partners to more effectively exercise control over their maritime territory and to deter adversaries  The committee is encouraged by the progress that has been made under the initiative, and notes that to date, the Department of Defense has utilized the authority under section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92), as amended, to support specified partner capacity-building efforts in the region, to include the provision of training, sustainment support, and participation in multilateral engagements  The committee recognizes that the initiative was designed to support a long-term capacity building effort, which will require increased resources in future years as requirements are established and refined, as programs mature, and as the regional security environment continues to evolve  The committee believes the Department's efforts to improve maritime domain awareness and maritime security should be fully integrated into a U S  strategy for a free and open Indo-Pacific  Therefore, the committee supports redesignating the authority under section 1263 as the Indo-Pacific Maritime Security Initiative, the inclusion of Bangladesh and Sri Lanka as recipient countries, and the addition of India as a covered country to encourage its participation in regional security initiatives of this kind  Furthermore, as a demonstration of the United States' commitment to allies and partners in the region, the committee supports the extension of the Indo-Pacific Maritime Security Initiative through the end of 2025  Beyond the Indo-Pacific Maritime Security Initiative, the committee encourages the Department to make use of the full complement of security cooperation authorities available to the Department, particularly those under section 1241 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328), to enhance the capabilities of foreign security partners in South and Southeast Asia to protect mutual security interests  (Pages 296-297) Section 1245 of S  2987 as reported states the following: SEC  1245  Prohibition on participation of the People's Republic of China in Rim of the Pacific (RIMPAC) naval exercises  (a) Sense of Congress —It is the sense of Congress that— (1) the pace and militarization by the Government of the People's Republic of China of land reclamation activities in the South China Sea is destabilizing the security of United States allies and partners and threatening United States core interests; (2) these activities of the Government of the People's Republic of China adversarially threaten the maritime security of the United States and our allies and partners; (3) no country that acts adversarially should be invited to multilateral exercises; and (4) the involvement of the Government of the People's Republic of China in multilateral exercises should undergo reevaluation until such behavior changes  (b) Conditions for future participation in RIMPAC —The Secretary of Defense shall not enable or facilitate the participation of the People's Republic of China in any Rim of the Pacific (RIMPAC) naval exercise unless the Secretary certifies to the congressional defense committees that China has— (1) ceased all land reclamation activities in the South China Sea; (2) removed all weapons from its land reclamation sites; and (3) established a consistent four-year track record of taking actions toward stabilizing the region  A June 26, 2018, statement of Administration policy regarding S  2987 stated the following: Prohibition on Participation of the People's Republic of China in Rim of the Pacific (RIMPAC) Naval Exercises  The Administration objects to section 1245 because China's participation in RIMPAC and other military-to-military events may be appropriate or inappropriate in any given year, depending on numerous other factors  Section 1245 would place restrictions on the Secretary of Defense's ability to manage a strategic relationship in the context of competition, limiting DOD's options on China and ability to act in the national security interest of the United States  Section 1251 of S  2987 as reported states the following: SEC  1251  Report on military and coercive activities of the People's Republic of China in South China Sea  (a) In general —Except as provided in subsection (d), immediately after the commencement of any significant reclamation or militarization activity by the People's Republic of China in the South China Sea, including any significant military deployment or operation or infrastructure construction, the Secretary of Defense, in coordination with the Secretary of State, shall submit to the congressional defense committees, and release to the public, a report on the military and coercive activities of China in the South China Sea in connection with such activity  (b) Elements of report to public —Each report on a significant reclamation or militarization activity under subsection (a) shall include a short narrative on, and one or more corresponding images of, such significant reclamation or militarization activity  (c) Form — (1) SUBMITTAL TO CONGRESS —Any report under subsection (a) that is submitted to the congressional defense committees shall be submitted in unclassified form, but may include a classified annex  (2) RELEASE TO PUBLIC —If a report under subsection (a) is released to the public, such report shall be so released in unclassified form  (d) Waiver — (1) RELEASE OF REPORT TO PUBLIC —The Secretary of Defense may waive the requirement in subsection (a) for the release to the public of a report on a significant reclamation or militarization activity if the Secretary determines that the release to the public of a report on such activity under that subsection in the form required by subsection (c)(2) would have an adverse effect on the national security interests of the United States  (2) NOTICE TO CONGRESS —If the Secretary issues a waiver under paragraph (1) with respect to a report on an activity, not later than 48 hours after the Secretary issues such waiver, the Secretary shall submit to the congressional defense committees written notice of, and justification for, such waiver  Regarding Section 1251, S Rept  115-262 states the following: Report on military and coercive activities of the People's Republic of China in the South China Sea (sec  1251) The committee recommends a provision that would require the Secretary of Defense, in coordination with the Secretary of State, to submit to the congressional defense committees and release to the public, a report on the military and coercive activities of China in the South China Sea in connection with such activity immediately after the commencement of any significant reclamation or militarization activity by the People's Republic of China in the South China Sea, including any significant military deployment or operation or infrastructure construction  The committee is concerned that sufficient information has not been made publicly available in a timely fashion regarding China's reclamation and militarization activities of China in the South China Sea  Therefore, the committee urges the Secretary of Defense to determine that the public interest in selective declassification of China's activities in the South China Sea outweighs the potential damage from disclosure  The Secretary should consider mandating that the directors of National Geospatial-Intelligence Agency and the Defense Intelligence Agency provide the Bureau of Intelligence and Research (INR) at the State Department with declassified aircraft-generated imagery and supporting analysis describing Chinese activities of concern  The committee also urges that the State Department brief and distribute the reports to the media and throughout Southeast Asia  (Page 300) In the conference report ( H Rept  115-874 of July 25, 2018) on H R  5515 / P L  115-232 of August 13, 2018, Section 1086 states the following: SEC  1086  UNITED STATES POLICY WITH RESPECT TO FREEDOM OF NAVIGATION AND OVERFLIGHT  (a) DECLARATION OF POLICY —It is the policy of the United States to fly, sail, and operate throughout the oceans, seas, and airspace of the world wherever international law allows  (b) IMPLEMENTATION OF POLICY —In furtherance of the policy set forth in subsection (a), the Secretary of Defense should— (1) plan and execute a robust series of routine and regular air and naval presence missions throughout the world and throughout the year, including for critical transportation corridors and key routes for global commerce; (2) in addition to the missions executed pursuant to paragraph (1), execute routine and regular air and maritime freedom of navigation operations throughout the year, in accordance with international law, including, but not limited to, maneuvers beyond innocent passage; and (3) to the maximum extent practicable, execute the missions pursuant to paragraphs (1) and (2) with regional partner countries and allies of the United States  Section 1252 of H R  5515 states the following: SEC  1252  REDESIGNATION, EXPANSION, AND EXTENSION OF SOUTHEAST ASIA MARITIME SECURITY INITIATIVE  (a) REDESIGNATION AS INDO-PACIFIC MARITIME SECURITY INITIATIVE — (1) IN GENERAL —Subsection (a)(2) of section 1263 of the National Defense Authorization Act for Fiscal Year 2016 (10 U S C  333 note) is amended by striking ''the 'Southeast Asia Maritime Security Initiative' '' and inserting ''the 'Indo-Pacific Maritime Security Initiative' ''  (2) CONFORMING AMENDMENT —The heading of such section is amended to read as follows: ''SEC  1263  INDO-PACIFIC MARITIME SECURITY INITIATIVE ''  (b) EXPANSION — (1) EXPANSION OF REGION TO RECEIVE ASSISTANCE AND TRAINING —Subsection (a)(1) of such section is amended by inserting ''and the Indian Ocean'' after ''South China Sea'' in the matter preceding subparagraph (A)  (2) RECIPIENT COUNTRIES OF ASSISTANCE AND TRAINING GENERALLY —Subsection (b) of such section is amended— (A) in paragraph (2), by striking the comma at the end and inserting a period; and (B) by adding at the end the following new paragraphs: ''(6) Bangladesh  ''(7) Sri Lanka ''  (3) COUNTRIES ELIGIBLE FOR PAYMENT OF CERTAIN INCREMENTAL EXPENSES —Subsection (e)(2) of such section is amended by adding at the end the following new subparagraph: ''(D) India ''  (c) EXTENSION —Subsection (h) of such section is amended by striking ''September 30, 2020'' and inserting ''December 31, 2025''  Section 1259 of H R  5515 states the following: SEC  1259  PROHIBITION ON PARTICIPATION OF THE PEOPLE'S REPUBLIC OF CHINA IN RIM OF THE PACIFIC (RIMPAC) NAVAL EXERCISES  (a) CONDITIONS FOR FUTURE PARTICIPATION IN RIMPAC — (1) IN GENERAL —The Secretary of Defense shall not enable or facilitate the participation of the People's Republic of China in any Rim of the Pacific (RIMPAC) naval exercise unless the Secretary certifies to the congressional defense committees that China has— (A) ceased all land reclamation activities in the South China Sea; (B) removed all weapons from its land reclamation sites; and (C) established a consistent four-year track record of taking actions toward stabilizing the region  (2) FORM —The certification under paragraph (1) shall be in unclassified form but may contain a classified annex as necessary  (b) NATIONAL SECURITY WAIVER — (1) IN GENERAL —The Secretary of Defense may waive the certification requirement under subsection (a) if the Secretary determines the waiver is in the national security interest of the United States and submits to the congressional defense committees a detailed justification for the waiver  (2) FORM —The justification required under paragraph (1) shall be in unclassified form but may contain a classified annex as necessary  Section 1262 of H R  5515 states the following: SEC  1262  REPORT ON MILITARY AND COERCIVE ACTIVITIES OF THE PEOPLE'S REPUBLIC OF CHINA IN SOUTH CHINA SEA  (a) IN GENERAL —Except as provided in subsection (d), immediately after the commencement of any significant reclamation, assertion of an excessive territorial claim, or militarization activity by the People's Republic of China in the South China Sea, including any significant military deployment or operation or infrastructure construction, the Secretary of Defense, in coordination with the Secretary of State, shall submit to the appropriate congressional committees, and release to the public, a report on the military and coercive activities of China in the South China Sea in connection with such activity  (b) ELEMENTS OF REPORT TO PUBLIC —Each report on the commencement of a significant reclamation, an assertion of an excessive territorial claim, or a militarization activity under subsection (a) shall include a short narrative on, and one or more corresponding images of, such commencement of a significant reclamation, assertion of an excessive territorial claim, or militarization activity  (c) FORM — (1) SUBMISSION TO CONGRESS —Any report under subsection (a) that is submitted to the appropriate congressional committees shall be submitted in unclassified form, but may include a classified annex  (2) RELEASE TO PUBLIC —If a report under subsection (a) is released to the public, such report shall be so released in unclassified form  (d) WAIVER — (1) RELEASE OF REPORT TO PUBLIC —The Secretary of Defense may waive the requirement in subsection (a) for the release to the public of a report on the commencement of any significant reclamation, an assertion of an excessive territorial claim, or a militarization activity by the People's Republic of China in the South China Sea if the Secretary determines that the release to the public of a report on such activity under that subsection in the form required by subsection (c)(2) would have an adverse effect on the national security interests of the United States  (2) NOTICE TO CONGRESS —If the Secretary issues a waiver under paragraph (1) with respect to a report on an activity, not later than 48 hours after the Secretary issues such waiver, the Secretary shall submit to the appropriate congressional committees written notice of, and justification for, such waiver  (e) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED —In this section, the term ''appropriate congressional committees'' means— (1) the congressional defense committees; and (2) the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives  Regarding Section 1262, H Rept  115-874 states the following: Report on military and coercive activities of the People's Republic of China in South China Sea (sec  1262) The House bill contained a provision (sec  1261) that would require Secretary of Defense, in consultation with the Director of National Intelligence and the Secretary of State, to submit a report to appropriate congressional committees on a quarterly basis describing China's activities in the Indo-Pacific region, and to disseminate the report to regional allies and partners and provide public notification, as appropriate  The provision would require that the dissemination and availability of the report and public notification be made in a manner consistent with national security and the protection of classified national security information  The Senate amendment contained a similar provision (sec  1251) that would require the Secretary of Defense, in coordination with the Secretary of State, to submit to the congressional defense committees and release to the public, a report on the military and coercive activities of China in the South China Sea in connection with such activity immediately after the commencement of any significant reclamation or militarization activity by the People's Republic of China in the South China Sea, including any significant military deployment or operation or infrastructure construction  The House recedes with an amendment that would clarify that the required report shall be submitted to the congressional defense committees immediately after the commencement of any significant reclamation, assertion of an excessive territorial claim, or military activity by the People's Republic of China in the South China Sea  The conferees are concerned that sufficient information has not been made publicly available in a timely fashion regarding China's reclamation and militarization activities in the South China Sea  Moreover, the conferees recognize that China has engaged in provocative military activities elsewhere throughout the Indo-Pacific Region, including the East China Sea, the Taiwan Strait, and the Indian Ocean  The conferees urge the Secretary of Defense to give full consideration to the strategic and public interest in selective declassification of China's activities in the South China Sea and elsewhere in the Indo-Pacific region  (Pages 993-994) Section 1288 of H R  5515 states the following: SEC  1288  MODIFICATION OF FREEDOM OF NAVIGATION REPORTING REQUIREMENTS  Subsection (a) of section 1275 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat  2540), as amended by section 1262(a)(1) of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 131 Stat  1689), is further amended by striking ''the Committees on Armed Services of the Senate and the House of Representatives'' and inserting ''the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives''  Appendix A  Strategic Context from U S  Perspective This appendix presents a brief discussion of some elements of the strategic context from a U S  perspective in which the issues discussed in this report may be considered  There is also a broader context of U S -China relations and U S  foreign policy toward the Indo-Pacific that is covered in other CRS reports  Shift in International Security Environment World events have led some observers, starting in late 2013, to conclude that the international security environment has undergone a shift from the familiar post-Cold War era of the past 20 to 25 years, also sometimes known as the unipolar moment (with the United States as the unipolar power), to a new and different situation that features, among other things, renewed great power competition with China and Russia and challenges by these two countries and others to elements of the U S -led international order that has operated since World War II  China's actions in the SCS and ECS can be viewed as one reflection of that shift  Uncertainty Regarding Future U S  Role in World The overall U S  role in the world since the end of World War II in 1945 (i e , over the past 70 years) is generally described as one of global leadership and significant engagement in international affairs  A key aim of that role has been to promote and defend the open international order that the United States, with the support of its allies, created in the years after World War II  In addition to promoting and defending the open international order, the overall U S  role is generally described as having been one of promoting freedom, democracy, and human rights, while criticizing and resisting authoritarianism where possible, and opposing the emergence of regional hegemons in Eurasia or a spheres-of-influence world  Certain statements and actions from the Trump Administration have led to uncertainty about the Administration's intentions regarding the future U S  role in the world  Based on those statements and actions, some observers have speculated that the Trump Administration may want to change the U S  role in one or more ways  A change in the overall U S  role could have profound implications for U S  foreign policy, including U S  policy regarding maritime territorial and EEZ disputes involving China  U S  Grand Strategy Discussion of the above-mentioned shift in the international security environment has led to a renewed emphasis in discussions of U S  security and foreign policy on grand strategy and geopolitics  From a U S  perspective, grand strategy can be understood as strategy considered at a global or interregional level, as opposed to strategies for specific countries, regions, or issues  Geopolitics refers to the influence on international relations and strategy of basic world geographic features such as the size and location of continents, oceans, and individual countries  From a U S  perspective on grand strategy and geopolitics, it can be noted that most of the world's people, resources, and economic activity are located not in the Western Hemisphere, but in the other hemisphere, particularly Eurasia  In response to this basic feature of world geography, U S  policymakers for the past several decades have chosen to pursue, as a key element of U S  grand strategy, a goal of preventing the emergence of a regional hegemon in one part of Eurasia or another, on the grounds that such a hegemon could represent a concentration of power strong enough to threaten core U S  interests by, for example, denying the United States access to some of the other hemisphere's resources and economic activity  Although U S  policymakers have not often stated this key national strategic goal explicitly in public, U S  military (and diplomatic) operations in recent decades—both wartime operations and day-to-day operations—can be viewed as having been carried out in no small part in support of this key goal  Focus on Great Power Competition with China and Russia The Trump Administration's December 2017 National Security Strategy (NSS) and the 11-page unclassified summary of its January 2018 National Defense Strategy (NDS) reorient U S  national security strategy and, within that, U S  defense strategy, toward an explicit primary focus on great power competition with China and Russia and on countering Chinese and Russian military capabilities  The new U S  strategy orientation set forth in the 2017 NSS and 2018 NDS is sometimes referred to a "2+3" strategy, meaning a strategy for countering two primary challenges (China and Russia) and three additional challenges (North Korea, Iran, and terrorist groups)  Concept of a Free and Open Indo-Pacific (FOIP) In addition to the 2017 NSS and 2018 NDS, the Trump Administration has highlighted the concept of a free and open Indo-Pacific (FOIP), with the term Indo-Pacific referring to the Indian Ocean, the Pacific Ocean, and the countries (particularly those in Eurasia) bordering on those two oceans  The concept, which is still being fleshed out by the Trump Administration, appears to be a general U S foreign policy and national security construct for the region, but observers view it as one that includes a military component  Challenge to U S  Sea Control and U S  Position in Western Pacific Observers of Chinese and U S  military forces view China's improving naval capabilities as posing a potential challenge in the Western Pacific to the U S  Navy's ability to achieve and maintain control of blue-water ocean areas in wartime—the first such challenge the U S  Navy has faced since the end of the Cold War  More broadly, these observers view China's naval capabilities as a key element of an emerging broader Chinese military challenge to the long-standing status of the United States as the leading military power in the Western Pacific  Regional U S  Allies and Partners The United States has certain security-related policies pertaining to Taiwan under the Taiwan Relations Act ( H R  2479 / P L  96-8 of April 10, 1979)  The United States has bilateral security treaties with Japan, South Korea, and the Philippines, and an additional security treaty with Australia and New Zealand  In addition to U S  treaty allies, certain other countries in the Western Pacific can be viewed as current or emerging U S  security partners  Appendix B  U S  Treaties with Japan and Philippines This appendix presents brief background information on the U S  security treaties with Japan and the Philippines  U S -Japan Treaty on Mutual Cooperation and Security The 1960 U S -Japan treaty on mutual cooperation and security states in Article V that Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes  The United States has reaffirmed on a number of occasions over the years that since the Senkaku Islands are under the administration of Japan, they are included in the territories referred to in Article V of the treaty, and that the United States "will honor all of our treaty commitments to our treaty partners " (At the same time, the United States, noting the difference between administration and sovereignty, has noted that such affirmations do not prejudice the U S  approach of taking no position regarding the outcome of the dispute between China, Taiwan, and Japan regarding who has sovereignty over the islands ) Some observers, while acknowledging the U S  affirmations, have raised questions regarding the potential scope of actions that the United States might take under Article V  U S -Philippines Mutual Defense Treaty The 1951 U S -Philippines mutual defense treaty states in Article IV that Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes  Article V states that For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific  The United States has reaffirmed on a number of occasions over the years its obligations under the U S -Philippines mutual defense treaty  On May 9, 2012, Filipino Foreign Affairs Secretary Albert F  del Rosario issued a statement providing the Philippine perspective regarding the treaty's application to territorial disputes in the SCS  U S  officials have made their own statements regarding the treaty's application to territorial disputes in the SCS  Appendix C  Treaties and Agreements Related to the Maritime Disputes This appendix briefly reviews some international treaties and agreements that bear on the issues discussed in this report  UN Convention on Law of the Sea (UNCLOS) The United Nations Convention on the Law of the Sea (UNCLOS) establishes a treaty regime to govern activities on, over, and under the world's oceans  UNCLOS was adopted by Third United Nations Conference on the Law of the Sea in December 1982, and entered into force in November 1994  The treaty established EEZs as a feature of international law, and contains multiple provisions relating to territorial waters and EEZs  As of May 10, 2018, 168 nations were party to the treaty, including China and most other countries bordering on the SCS and ECS (the exceptions being North Korea and Taiwan)  The treaty and an associated 1994 agreement relating to implementation of Part XI of the treaty (on deep seabed mining) were transmitted to the Senate on October 6, 1994  In the absence of Senate advice and consent to adherence, the United States is not a party to the convention and the associated 1994 agreement  A March 10, 1983, statement on U S  ocean policy by President Ronald Reagan states that UNCLOS contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states  Today I am announcing three decisions to promote and protect the oceans interests of the United States in a manner consistent with those fair and balanced results in the Convention and international law  First, the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans—such as navigation and overflight  In this respect, the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states  Second, the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the 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 overflight and other related high seas uses  Third, I am proclaiming today an Exclusive Economic Zone in which the United States will exercise sovereign rights in living and nonliving resources within 200 nautical miles of its coast  This will provide United States jurisdiction for mineral resources out to 200 nautical miles that are not on the continental shelf  UNCLOS builds on four 1958 law of the sea conventions to which the United States is a party: the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, the Convention on the Continental Shelf, and the Convention on Fishing and Conservation of the Living Resources of the High Seas  1972 Convention on Preventing Collisions at Sea (COLREGs) China and the United States, as well as more than 150 other countries (including all those bordering on the South East and South China Seas, but not Taiwan), are parties to an October 1972 multilateral convention on international regulations for preventing collisions at sea, commonly known as the collision regulations (COLREGs) or the "rules of the road " Although commonly referred to as a set of rules or regulations, this multilateral convention is a binding treaty  The convention applies "to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels " It thus applies to military vessels, paramilitary and law enforcement (i e , coast guard) vessels, maritime militia vessels, and fishing boats, among other vessels  In a February 18, 2014, letter to Senator Marco Rubio concerning the December 5, 2013, incident involving the Cowpens , the State Department stated the following: In order to minimize the potential for an accident or incident at sea, it is important that the United States and China share a common understanding of the rules for operational air or maritime interactions  From the U S  perspective, an existing body of international rules and guidelines—including the 1972 International Regulations for Preventing Collisions at Sea (COLREGs)—are sufficient to ensure the safety of navigation between U S  forces and the force of other countries, including China  We will continue to make clear to the Chinese that these existing rules, including the COLREGs, should form the basis for our common understanding of air and maritime behavior, and we will encourage China to incorporate these rules into its incident-management tools  Likewise, we will continue to urge China to agree to adopt bilateral crisis management tools with Japan and to rapidly conclude negotiations with ASEAN on a robust and meaningful Code of Conduct in the South China in order to avoid incidents and to manage them when they arise  We will continue to stress the importance of these issues in our regular interactions with Chinese officials  In the 2014 edition of its annual report on military and security developments involving China, the DOD states the following: On December 5, 2013, a PLA Navy vessel and a U S  Navy vessel operating in the South China Sea came into close proximity  At the time of the incident, USS COWPENS (CG 63) was operating approximately 32 nautical miles southeast of Hainan Island  In that location, the U S  Navy vessel was conducting lawful military activities beyond the territorial sea of any coastal State, consistent with customary international law as reflected in the Law of the Sea Convention  Two PLA Navy vessels approached USS COWPENS  During this interaction, one of the PLA Navy vessels altered course and crossed directly in front of the bow of USS COWPENS  This maneuver by the PLA Navy vessel forced USS COWPENS to come to full stop to avoid collision, while the PLA Navy vessel passed less than 100 yards ahead  The PLA Navy vessel's action was inconsistent with internationally recognized rules concerning professional maritime behavior (i e , the Convention of International Regulations for Preventing Collisions at Sea), to which China is a party  2014 Code for Unplanned Encounters at Sea (CUES) On April 22, 2014, representatives of 21 Pacific-region navies (including China, Japan, and the United States), meeting in Qingdao, China, at the 14 th Western Pacific Naval Symposium (WPNS), unanimously agreed to a Code for Unplanned Encounters at Sea (CUES)  CUES, a nonbinding agreement, establishes a standardized protocol of safety procedures, basic communications, and basic maneuvering instructions for naval ships and aircraft during unplanned encounters at sea, with the aim of reducing the risk of incidents arising from such encounters  The CUES agreement in effect supplements the 1972 COLREGs Convention (see previous section); it does not cancel or lessen commitments that countries have as parties to the COLREGS Convention  Two observers stated that "the [CUES] resolution is non-binding; only regulates communication in 'unplanned encounters,' not behavior; fails to address incidents in territorial waters; and does not apply to fishing and maritime constabulary vessels [i e , coast guard ships and other maritime law enforcement ships], which are responsible for the majority of Chinese harassment operations " DOD stated in 2015 that Going forward, the Department is also exploring options to expand the use of CUES to include regional law enforcement vessels and Coast Guards  Given the growing use of maritime law enforcement vessels to enforce disputed maritime claims, expansion of CUES to MLE [maritime law enforcement] vessels would be an important step in reducing the risk of unintentional conflict  U S  Navy officials have stated that the CUES agreement is generally working well, and that the United States (as noted in the passage above) is interested in expanding the agreement to cover coast guard ships  Officials from Singapore and Malaysia reportedly have expressed support for the idea  An Obama Administration fact sheet about Chinese President Xi Jinping's state visit to the United States on September 24-25, 2015, stated the following: The U S  Coast Guard and the China Coast Guard have committed to pursue an arrangement whose intended purpose is equivalent to the Rules of Behavior Confidence Building Measure annex on surface-to-surface encounters in the November 2014 Memorandum of Understanding between the United States Department of Defense and the People's Republic of China Ministry of National Defense  A November 3, 2018, press report published following an incident in the SCS between a U S  Navy destroyer and a Chinese destroyer stated the following: The U S  Navy's chief of naval operations has called on China to return to a previously agreed-upon code of conduct for at-sea encounters between the ships of their respective navies, stressing the need to avoid miscalculations  During a Nov  1 teleconference with reporters based in the Asia-Pacific region, Adm  John Richardson said he wants the People's Liberation Army Navy to "return to a consistent adherence to the agreed-to code that would again minimize the chance for a miscalculation that could possibly lead to a local incident and potential escalation " The CNO cited a case in early October when the U S  Navy's guided-missile destroyer Decatur reported that a Chinese Type 052C destroyer came within 45 yards of the Decatur as it conducted a freedom-of-navigation operation in the South China Sea  However, he added that the "vast majority" of encounters with Chinese warships in the South China Sea "are conducted in accordance with the Code of Unplanned Encounters at Sea and done in a safe and professional manner " The code is an agreement reached by 21 Pacific nations in 2014 to reduce the chance of an incident at sea between the agreement's signatories  2014 U S -China MOU on Air and Maritime Encounters In November 2014, the U S  DOD and China's Ministry of National Defense signed a Memorandum of Understanding (MOU) regarding rules of behavior for safety of air and maritime encounters  The MOU makes reference to UNCLOS, the 1972 COLREGs convention, the Conventional on International Civil Aviation (commonly known as the Chicago Convention), the Agreement on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety (MMCA), and CUES  The MOU as signed in November 2014 included an annex on rules of behavior for safety of surface-to-surface encounters  An additional annex on rules of behavior for safety of air-to-air encounters was signed on September 15 and 18, 2015  An October 20, 2018, press report states the following: Eighteen nations including the U S  and China agreed in principle Saturday [October 20] to sign up to guidelines governing potentially dangerous encounters by military aircraft, a step toward stabilizing flashpoints but one that leaves enough wiggle room to ignore the new standards when a country wants  The guidelines essentially broaden a similar agreement reached by the U S  and China three years ago and are an attempt to mitigate against incidents and collisions in some of the world's most tense areas…  The in-principle agreement, which will be put forward for formal adoption by the group of 18 nations next year, took place at an annual meeting of defense ministers under the aegis of the 10-country Association of Southeast Asian Nations, hosted by Singapore  Asean nations formally adopted the new guidelines themselves Friday  "The guidelines are very useful in setting norms," Singapore's defense minister Ng Eng Hen told reporters after the meeting  "All the 18 countries agreed strong in-principle support for the guidelines "… The aerial-encounters framework agreed to Saturday includes language that prohibits fast or aggressive approaches in the air and lays out guidelines on clear communications including suggestions to "refrain from the use of uncivil language or unfriendly physical gestures " Signatories to the agreement, which is voluntary and not legally binding, would agree to avoid unprofessional encounters and reckless maneuvers…  The guidelines fall short on enforcement and geographic specifics, but they are "better than nothing at all," said Evan Laksmana, senior researcher with the Center for Strategic and International Studies in Jakarta  "Confidence-building surrounding military crises or encounters can hardly move forward without some broadly agreed-upon rules of the game," he said  Negotiations on SCS Code of Conduct (COC) In 2002, China and the 10 member states of ASEAN signed a nonbinding Declaration on the Conduct (DOC) of Parties in the South China Sea in which the parties, among other things,     reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea         undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea         undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner        reaffirm that the adoption of a [follow-on] code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective     In July 2011, China and ASEAN adopted a preliminary set of principles for implementing the DOC  U S  officials since 2010 have encouraged ASEAN and China to develop the follow-on binding Code of Conduct (COC) mentioned in the final quoted paragraph above  China and ASEAN have conducted negotiations on the follow-on COC, but China has not yet agreed with the ASEAN member states on a final text  On March 8, 2017, China announced that the first draft of a framework for the COC had been completed, and that "China and ASEAN countries feel satisfied with this " On May 18 and 19, 2017, it was reported that the China and the ASEAN countries had agreed on the framework  An article from a Chinese news outlet stated the following: All countries involved have agreed not to release the framework document, but to maintain it as an internal document at this time since the consultation will continue and they do not want any external interference, [Vice-Foreign Minister] Liu [Zhenmin] said  "Against the backdrop of economic globalization, China and ASEAN countries should continue making our regional rules to guide our own actions and protect our common interests," Liu said  A May 18, 2017, press report stated that Liu Zhemin "called on others to stay out [of the negotiations], apparently a coded message to the United States  'We hope that our consultations on the code are not subject to any outside interference,' Liu said " An August 3, 2017, press report stated the following: Southeast Asian ministers meeting this week are set to avoid tackling the subject of Beijing's arming and building of manmade South China Sea islands, preparing to endorse a framework for a code of conduct that is neither binding nor enforceable  The Association of South East Asian Nations (ASEAN) has omitted references to China's most controversial activities in its joint communique, a draft reviewed by Reuters shows  In addition, a leaked blueprint for establishing an ASEAN-China code of maritime conduct does not call for it to be legally binding, or seek adherence to the United Nations Convention on the Law of the Sea (UNCLOS)     Analysts and some ASEAN diplomats worry that China's sudden support for negotiating a code of conduct is a ploy to buy time to further boost its military capability     The agreed two-page framework is broad and leaves wide scope for disagreement, urging a commitment to the "purposes and principles" of UNCLOS, for example, rather than adherence  The framework papers over the big differences between ASEAN nations and China, said Patrick Cronin of the Center for a New American Security  "Optimists will see this non-binding agreement as a small step forward, allowing habits of cooperation to develop, despite differences," he said  "Pessimists will see this as a gambit favorable to a China determined to make the majority of the South China Sea its domestic lake " An August 6, 2017, press report stated the following: Southeast Asian nations agreed with China on Sunday [August 6] to endorse a framework for a maritime code of conduct that would govern behavior in disputed waters of the South China Sea, a small step forward in a negotiation that has lasted well over a decade  Though not the long-discussed code itself, the framework sets out parameters for discussion of an agreement intended to bring predictability to a potential flashpoint as China increasingly asserts its military presence over the area in the face of rival claims  The 10 countries of the Association of Southeast Asian Nations will meet with China at the end of August to discuss legalities for negotiations on the code of conduct, with formal talks beginning soon after, Philippines department of foreign affairs spokesman Robespierre Bolivar said Sunday  The endorsement of the framework, which was tentatively agreed to in May, came during a bilateral meeting between China and Asean on the sidelines of a series of security-oriented meetings that will conclude Tuesday  The unsticking of the framework after years of obstruction is widely seen as a concession by China, which has opposed any legally binding code on maritime engagement, stepped up naval patrols and built artificial islands to enforce its claims, equipping them with military weapons  Beijing's move to allow discussion on the code of conduct follows a resetting of ties with the Philippines under President Rodrigo Duterte, who in October—just four months after taking office—visited Beijing and declared a new friendship between the two countries  An August 8, 2017, blog post about the framework states the following: In Manila on 6 August 2017, the foreign ministers of ASEAN and China endorsed the framework for the Code of Conduct for the South China Sea (COC)  While the framework is a step forward in the conflict management process for the South China Sea, it is short on details and contains many of the same principles and provisions contained in the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC) which has yet to be even partially implemented  The text includes a new reference to the prevention and management of incidents, as well as a seemingly stronger commitment to maritime security and freedom of navigation  However, the phrase "legally binding" is absent, as are the geographical scope of the agreement and enforcement and arbitration mechanisms  The framework will form the basis for further negotiations on the COC  Those discussions are likely to be lengthy and frustrating for those ASEAN members who had hoped to see a legally binding, comprehensive and effective COC  Some observers have argued that China has been dragging out the negotiations on the COC for years as part of a "talk and take strategy," meaning a strategy in which China engages in (or draws out) negotiations while taking actions to gain control of contested areas  A May 25, 2017, news report states the following: To call negotiations between China and the ten-country Association of South-East Asian Nations (ASEAN) over rival claims in the South China Sea "drawn out" would be a gross understatement  At the centre of the matter is an unsquareable circle: the competing claims of China and several South-East Asian countries  Nobody wants to go to war; nobody wants to be accused of backing down  Still, at a meeting of senior Chinese and ASEAN officials on May 18 th , something happened: the two sides agreed on a "framework" for a code of conduct  An official from Singapore (which currently co-ordinates ASEAN-China relations) called the agreement a sign of "steady progress"     ASEAN members called for a legally binding code of conduct as far back as 1996     Since then, code-of-conduct negotiations have proceeded glacially     Last July, after China received an unfavourable ruling on its maritime claims in a case brought by the Philippines to a tribunal in The Hague, China agreed to expedite the talks     The draft framework will be presented to ASEAN and Chinese foreign ministers at a conference in August  This will then form the basis for the thorny negotiations to follow  The text has not (yet) been leaked  But its most salient feature may be what it appears to lack: any hint of enforcement mechanisms or consequences for violations  China has long rejected a legally binding agreement—or indeed any arrangement that could limit its actions in the South China Sea  The result, explains Ian Storey, of the ISEAS-Yusof Ishak Institute, a think-tank in Singapore, is a framework "that makes China look co-operative…without having to do anything that might constrain its freedom of action"  ASEAN, meanwhile, gets the appearance of progress  "The ASEAN secretariat is a bureaucracy, and bureaucrats like process," explains Mr Storey  A July 13, 2018, blog post states the following: The COC has become a "holy grail," highly desired but unattainable  A major concern should be that this holy grail could turn into a tool for China to legitimize its actions in the South China Sea by engaging in the process while subverting its spirit  To this end, the challenges to the COC process are likely to be: China will use the COC talks to delay, exploit, and divert focus from any ASEAN consensus on the South China Sea; China will seek to include unhelpful and imprecise language in the COC which it could then use to justify its actions; China will nonetheless claim the COC as a diplomatic success and will use it as cover to avoid criticism while still pursuing its unilateral strategy to control the South China Sea…  If the COC process continues on its current trajectory, and China succeeds in filling the document with vague articles that would have little impact on its behavior, it would effectively be abusing the rules-based order to its own benefit  Instead of protecting against unilateral actions in the South China Sea, the rules-based order in the form of the COC could assist and justify China's expansion and ultimately its sole control of the South China Sea  Other regional actors need to recognize these traps of concluding a counter-productive COC, and resist the urge to reach an agreement just to be able to say they made progress  Instead, they should insist on negotiating the terms and conditions of a real COC, one that would establish effective rules-based dispute management mechanisms, not one that would by-pass them for the sake of an easy "win " An August 2, 2018, press report states the following: After more than a decade of talks, a bloc of Southeast Asian nations and China have agreed on a draft code of conduct that will lay the foundation for negotiations over the disputed South China Sea  Observers said the agreement showed that China and the Association of Southeast Asian Nations (Asean) could make progress through talks despite rising regional tensions, but they also warned that there was still a long way to go until a final deal  The agreement on the "Single Draft COC Negotiating Text" was announced at a meeting of Asean foreign ministers in Singapore on Thursday [August 2], after being nailed down at a China-Asean meeting in the central Chinese city of Changsha in June  An August 9, 2018, press report stated the following: Talks on completing a code of conduct for the disputed South China Sea will be long and complex and it would be unrealistic to set a timetable, state media on Thursday [August 9] cited a senior Chinese diplomat as saying…  In an interview with China Newsweek magazine, Yi Xianliang, Director General of the Chinese Foreign Ministry's Department of Boundary and Ocean Affairs, said the talks were continuing  Many of the topics were complex and sensitive and there were many different points of view, he said  "If these issues are to be resolved, and the code finally comes together, all sides need to keep looking for the greatest common denominator," Yi added  "There are voices from the outside, who are trying to set a timetable for the talks on the code  I think this is unrealistic," he said  Any multilateral talks take time, especially on such a complex issue as the South China Sea, Yi added  "It is impossible to define a timetable  Instead of setting the timetable unrealistically, and binding one's hands, it's better to step forward one foot at a time "… "Certain countries outside the region have been agitating that the code must be legally binding  This issue is quite complicated, including the domestic legal procedures involved in the countries concerned," he added, without elaborating  An October 22, 2018, press report stated the following: As China moves to complete the creation of military outposts in the South China Sea, Beijing's negotiation with southeastern Asian nations over a binding code of conduct is gaining momentum  But U S  officials and experts warn China's insertions in the draft South China Sea code of conduct may put Washington and Beijing on a collision course  The text of the draft also shows that deep divisions remain among claimants  One of the Chinese provisions in the text states, "The Parties shall not hold joint military exercises with countries from outside the region, unless the parties concerned are notified beforehand and express no objection " China also proposed cooperation on the marine economy "shall not be conducted in cooperation with companies from countries outside the region " A State Department spokesperson told VOA the United States is concerned by reports China has been pressing members of the Association of Southeast Asian Nations "in the closed-door talks, to accept restrictions on their ability to conduct exercises with security partners, and to agree not to conduct oil and gas exploration in their claimed waters with energy firms based in countries which are not part of the ongoing negotiations " "These proposals, if accepted, would limit the ability of ASEAN nations to conduct sovereign, independent foreign and economic policies and would directly harm the interests of the broader international community," added the State Department spokesperson…  "In other words, China would like a veto over all the military exercises held by ASEAN countries with other nations  I think this really provides some evidence that China indeed is trying to limit American influence in the region, one might go so far as to say to push American military presence out of the region eventually, but certainly in the area of the South China Sea," said Bonnie Glaser, director of the China Power Project at the Center for Strategic and International Studies in Washington…  The United States is also calling for ongoing discussions on the South China Sea code of conduct to be transparent and consultative with the rest of the international community  U S  officials said the international community has direct stakes in the outcome  A September 6, 2018, blog post stated the following: After two decades of talks, scepticism about the development of a South China Sea Code of Conduct (COC) is well-deserved, but it is also important to acknowledge progress when it happens  The agreement on a single draft negotiating text, revealed ahead of the ASEAN–China Post Ministerial Meeting on 2 August 2018, is an important step in the process that deserves recognition  The COC will not resolve the South China Sea disputes, nor was it ever meant to  Instead the COC is intended to manage disputes to avoid conflict pending their eventual resolution by direct negotiation or arbitration among the claimants  But any system to effectively manage the South China Sea disputes would require three things, none of which are achieved yet in the draft text  First, an effective COC would need to be geographically defined…  Second, an effective COC would need a dispute settlement mechanism…  Third, any effective regime to manage the South China Sea disputes would need detailed provisions on fisheries management and oil and gas development…  The solution to this problem could be a COC signed by all 10 ASEAN members and China that establishes general rules of behaviour within a clear geographic area, sets up an effective dispute settlement mechanism and endorses the immediate start of follow-on negotiations involving only the relevant claimants on fisheries management and oil and gas cooperation  Such a document would be a major step towards peacefully managing the South China Sea disputes and there are hints that at least some sections of the negotiating text might be on the right track  But the differences between parties remain considerable and final agreement on an effective COC still seems some way off  An October 29, 2018, press report states the following: The Philippines on Monday said a set of rules intended to prevent conflict in the South China Sea need not legally compel countries to follow it—an issue of importance for the Chinese government  Philippine Foreign Affairs Secretary Teodoro Locsin Jr  raised this possibility during a joint news conference with Wang Yi, his Chinese counterpart, in Davao City where they held bilateral talks to firm up preparations for President Xi Jinping's visit to Manila next month  The Association of Southeast Asian Nations and China are negotiating a code of conduct in the South China Sea  The 10-member bloc wants it to be legally binding, but Beijing prefers just "binding," ASEAN diplomats have said  "Perhaps, we will not be able to arrive at a legally binding COC, but it will be a standard on how people of ASEAN and governments of ASEAN will behave with each other -- always with honor, never with aggression, and always for mutual progress," Locsin said…  Wang said China will abide by the code whether it is legally binding or not  He said China hopes to finish the negotiations before Manila's term as ASEAN-China coordinator ends  "We welcome constructive opinions within the framework    that has been agreed," Wang said, referring to the general outline agreed last year, which dropped a reference to a legally binding code  The framework essentially repeats the spirit of a 2002 declaration on the South China Sea that called on parties to exercise restraint to avoid escalating tensions, and respect international law, among other things  Critics and ASEAN officials said the declaration failed to manage tensions in the disputed area because it was not legally binding  A November 14, 2018, press report stated the following: A rulebook to settle disputes in the hotly contested South China Sea should be finished in three years, Chinese Premier Li Keqiang said on Tuesday, insisting his nation does not seek "hegemony or expansion " Li's comments appeared to be the first clear timeframe for finishing the code of conduct  Talks have dragged on for years, with China accused of delaying progress as it prefers to deal with less powerful countries on a one-to-one basis  Appendix D  July 2016 Tribunal Award in SCS Arbitration Case Involving Philippines and China This appendix provides background information on the July 2016 tribunal award in the SCS arbitration case involving the Philippines and China  Overview In 2013, the Philippines sought arbitration under UNCLOS over the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate UNCLOS  A tribunal was constituted under UNCLOS to hear the case  China stated repeatedly that it would not accept or participate in the arbitration and that, in its view, the tribunal lacked jurisdiction in this matter  China's nonparticipation did not prevent the case from moving forward, and the tribunal decided that it had jurisdiction over various matters covered under the case  On July 12, 2016, the tribunal issued its award (i e , ruling) in the case  The award was strongly in favor of the Philippines—more so than even some observers had anticipated  The tribunal ruled, among other things, that China's nine-dash line claim had no legal basis; that none of the land features in the Spratlys is entitled to any more than a 12-nm territorial sea; that three of the Spratlys features that China occupies generate no entitlement to maritime zones; and that China violated the Philippines' sovereign rights by interfering with Philippine vessels and by damaging the maritime environment and engaging in reclamation work on a feature in the Philippines' EEZ  Under UNCLOS, the award is binding on both the Philippines and China (China's nonparticipation in the arbitration does not change this)  There is, however, no mechanism for enforcing the tribunal's award  The United States has urged China and the Philippines to abide by the award  China, however, has declared the ruling null and void  Philippine President Rodrigo Duterte, who took office just before the tribunal's ruling, has not sought to enforce it  The tribunal's press release summarizing its award states the following in part: The Award is final and binding, as set out in Article 296 of the Convention [i e , UNCLOS] and Article 11 of Annex VII [of UNCLOS]  Historic Rights and the 'Nine-Dash Line':     On the merits, the Tribunal concluded that the Convention comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered, but not adopted in the Convention  Accordingly, the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention  The Tribunal also noted that, although Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources  The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the 'nine-dash line'  Status of Features:     Features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide do not  The Tribunal noted that the reefs have been heavily modified by land reclamation and construction, recalled that the Convention classifies features on their natural condition, and relied on historical materials in evaluating the features  The Tribunal then considered whether any of the features claimed by China could generate maritime zones beyond 12 nautical miles  Under the Convention, islands generate an exclusive economic zone of 200 nautical miles and a continental shelf, but "[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf "     the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones  The Tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit  Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the Tribunal found that it could—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China  Lawfulness of Chinese Actions:     Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines' sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone  The Tribunal also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access  The Tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels  Harm to Marine Environment: The Tribunal considered the effect on the marine environment of China's recent large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands and found that China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species  The Tribunal also found that Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict severe damage on the coral reef environment) and had not fulfilled their obligations to stop such activities  Aggravation of Dispute: Finally, the Tribunal considered whether China's actions since the commencement of the arbitration had aggravated the dispute between the Parties  The Tribunal found that it lacked jurisdiction to consider the implications of a stand-off between Philippine marines and Chinese naval and law enforcement vessels at Second Thomas Shoal, holding that this dispute involved military activities and was therefore excluded from compulsory settlement  The Tribunal found, however, that China's recent large-scale land reclamation and construction of artificial islands was incompatible with the obligations on a State during dispute resolution proceedings, insofar as China has inflicted irreparable harm to the marine environment, built a large artificial island in the Philippines' exclusive economic zone, and destroyed evidence of the natural condition of features in the South China Sea that formed part of the Parties' dispute  Assessments of Impact of Arbitral Award One Year Later In July 2017, a year after the arbitral panel's award, some observers assessed the impact to date of the award  For example, one observer stated the following: One year ago, China suffered a massive legal defeat when an international tribunal based in The Hague ruled that the vast majority of Beijing's extensive claims to maritime rights and resources in the South China Sea were not compatible with international law  Beijing was furious  At an official briefing immediately after the ruling, Vice Foreign Minister Liu Zhenmin twice called it "nothing more than a piece of waste paper," and one that "will not be enforced by anyone " And yet, one year on, China is, in many ways, abiding by it     China is not fully complying with the ruling—far from it  On May 1, China imposed a three-and-a-half-month ban on fishing across the northern part of the South China Sea, as it has done each year since 1995  While the ban may help conserve fish stocks, its unilateral imposition in wide areas of the sea violates the ruling  Further south, China's occupation of Mischief Reef, a feature that is submerged at high tide and the tribunal ruled was part of the Philippines' continental shelf, endures  Having built a vast naval base and runway here, China looks like it will remain in violation of that part of the ruling for the foreseeable future  But there is evidence that the Chinese authorities, despite their rhetoric, have already changed their behavior  In October 2016, three months after the ruling, Beijing allowed Philippine and Vietnamese boats to resume fishing at Scarborough Shoal, west of the Philippines  A China Coast Guard ship still blocks the entrance to the lagoon, but boats can still fish the rich waters around it  The situation is not perfect but neither is China flaunting its defiance     Much more significantly, China has avoided drilling for oil and gas on the wrong side of the invisible lines prescribed by the United Nations Convention on the Law of the Sea (UNCLOS)         the ruling means China has no claim to the fish, oil or gas more than 12 nautical miles from any of the Spratlys or Scarborough Shoal  The Chinese authorities appear not to accept this     There are clear signs from both China's words and deeds that Beijing has quietly modified its overall legal position in the South China Sea  Australian researcher Andrew Chubb noted a significant article in the Chinese press in July last year outlining the new view         China's new position seems to represent a major step towards compliance with UNCLOS and, therefore, the ruling  Most significantly, it removes the grounds for Chinese objections to other countries fishing and drilling in wide areas of the South China Sea     Overall, the picture is of a China attempting to bring its vision of the rightful regional order (as the legitimate owner of every rock and reef inside the U-shaped line) within commonly understood international rules  Far from being "waste paper," China is taking the tribunal ruling very seriously  It is still some way from total compliance but it is clearly not deliberately flouting the ruling  Another observer stated the following: A year ago today, an arbitral tribunal formed pursuant to the United Nations Convention for the Law of the Sea issued a blockbuster award finding much of China's conduct in the South China Sea in violation of international law  As I detailed that day on this blog and elsewhere, the Philippines won about as big a legal victory as it could have expected  But as many of us also warned that day, a legal victory is not the same as an actual victory  In fact, over the past year China has succeeded in transforming its legal defeat into a policy victory by maintaining its aggressive South China Sea policies while escaping sanction for its non-compliance  While the election of a new pro-China Philippines government is a key factor, much of the blame for China's victory must also be placed on the Obama Administration     International law seldom enforces itself, and even the reputational costs of violating international law do not arise unless other states impose those costs on the law-breaker  Both the Philippines and the U S  had policy options that would have raised the costs of China's non-compliance with the award  But neither country's government chose to press China on the arbitral award     Looking back after one year, we cannot say (yet) that U S  policy in the South China Sea is a failure  But we can say that the U S  under President Obama missed a huge opportunity to change the dynamics in the region in its favor, and it is hard to know whether or when another such opportunity will arise in the future  Reported Chinese Characterization of Arbitral Award as "Waste Paper" When the arbitral panel's award was announced, China stated that "China does not accept or recognize it," and that the award "is invalid and has no binding force " The first of the two passages quoted above states that "at an official briefing immediately after the ruling, Vice Foreign Minister Liu Zhenmin twice called it 'nothing more than a piece of waste paper,' and one that 'will not be enforced by anyone '" A November 22, 2017, press report states the following: An eight-page essay pumped through social media and Chinese state newspapers in recent days extolled the virtues of president Xi Jinping  Among his achievements, in the Chinese language version, was that he had turned the South China Sea Arbitration at The Hague—which found against China—into "waste paper"  It was an achievement that state news agency Xinhua's lengthy hymn, entitled "Xi and His Era", did not include in the English version for foreign consumption  Assessments and Events Two Years Later Another observer writes in a May 10, 2018, commentary piece that Two years after an international tribunal rejected expansive Chinese claims to the South China Sea, Beijing is consolidating control over the area and its resources  While the U S  defends the right to freedom of navigation, it has failed to support the rights of neighboring countries under the tribunal's ruling  As a result, Southeast Asian countries are bowing to Beijing's demands…  While Beijing's dramatic military buildup in the South China Sea has received much attention, its attempts at "lawfare" are largely overlooked  In May, the Chinese Society of International Law published a "critical study" on the South China Sea arbitration case  It rehashed old arguments but also developed a newer one, namely that China is entitled to claim maritime zones based on groups of features rather than from individual features  Even if China is not entitled to historic rights within the area it claims, this argument goes, it is entitled to resources in a wide expanse of sea on the basis of an exclusive economic zone generated from outlying archipelagoes  But the Convention on the Law of the Sea makes clear that only archipelagic states such as the Philippines and Indonesia may draw straight archipelagic baselines from which maritime zones may be claimed  The tribunal also explicitly found that there was "no evidence" that any deviations from this rule have amounted to the formation of a new rule of customary international law  China's arguments are unlikely to sway lawyers, but that is not their intended audience  Rather Beijing is offering a legal fig leaf to political and business elites in Southeast Asia who are already predisposed to accept Beijing's claims in the South China Sea  They fear China's threat of coercive economic measures and eye promises of development through offerings such as the Belt and Road Initiative  Why did Washington go quiet on the 2016 tribunal decision? One reason is Philippine President Rodrigo Duterte's turn toward China and offer to set aside the ruling  The U S  is also worried about the decision's implications for its own claims to exclusive economic zones from small, uninhabited land features in the Pacific  The Trump administration's failure to press Beijing to abide by the tribunal's ruling is a serious mistake  It undermines international law and upsets the balance of power in the region  Countries have taken note that the tide in the South China Sea is in China's favor, and they are making their strategic calculations accordingly  This hurts U S  interests in the region  A July 12, 2018, press report stated the following: The Philippines is celebrating today the second anniversary of its landmark arbitration award against China's territorial claims in the South China Sea handed down by an arbitral tribunal in The Hague…  Until now, the Philippines remains sharply divided on how to leverage its arbitration award  Filipino President Rodrigo Duterte has repeatedly downplayed the relevance of the ruling by questioning its enforceability amid China's vociferous opposition  Soon after taking office in mid-2016, Duterte declared that he would "set aside" the arbitration award in order to pursue a "soft landing" in bilateral relations with China  In exchange, he has hoped for large-scale Chinese investments as well as resource-sharing in the South China Sea…  Other major leaders in the Philippines, however, have taken a tougher stance and continue to try to leverage the award to resist China's expanding footprint in the area  The Stratbase-Albert Del Rosario Institute, an influential think tank co-founded by former Philippine Secretary of Foreign Affairs Albert del Rosario, hosted today a high-level forum on the topic at the prestigious Manila Polo Club  Del Rosario oversaw the arbitration proceedings against China under Duterte's predecessor, Benigno Aquino  He opened the event attended by dignitaries from major Western and Asian countries with a strident speech which accused China of trying to "dominate the South China Sea through force and coercion " He defended the arbitration award as an "overwhelming victory" to resist "China's unlawful expansion agenda " The ex-top diplomat also accused the Duterte administration of acquiescence to China by acting as an "abettor" and "willing victim" by soft-pedaling the Philippines' claims in the South China Sea and refusing to raise the arbitration award in multilateral fora  The keynote speaker of the event was Vice President Leni Robredo, who has recently emerged as the de facto leader of the opposition against Duterte  Though falling short of directly naming Duterte, her spirited speech served as a comprehensive indictment of the administration's policy in the South China Sea…  Her keynote address, widely covered by the local media, was followed by an even more spirited speech by interim Supreme Court Chief Justice Antonio Carpio, another leading critic of Duterte's foreign policy  The chief magistrate, who also oversaw the Philippines' arbitration proceedings against China, lashed out at Duterte for placing the landmark award in a "deep freeze " He called on the Duterte administration to leverage the award by negotiating maritime delimitation agreements with other Southeast Asian claimant states such as Malaysia and Vietnam which welcomed the arbitral tribunal's nullification of China's nine-dashed-line map  He also called on the Philippines to expand its maritime entitlement claims in the area, in accordance to the arbitration award, by applying for an extended continental shelf in the South China Sea at the UN  Another July 12, 2018, press report stated the following: Tarpaulins bearing the words "Welcome to the Philippines, province of China" were seen hanging from several footbridges in Metro Manila Thursday, two years after the country won its arbitration case against China  The red banners bore the Chinese flag and Chinese characters  It is unclear who installed the tarpaulins, which are possible reference to a "joke" by President Rodrigo Duterte that the country can be a province of the Asian giant  "He (Xi Jinping) is a man of honor  They can even make us 'Philippines, province of China,' we will even avail of services for free," Duterte said in apparent jest before an audience of Chinese-Filipino business leaders earlier in 2018  "If China were a woman, I'd woo her "… In a Palace briefing, presidential spokesperson Harry Roque said enemies of the government are behind the tarpaulins  A report on ANC said that the Metro Manila Development Authority already took the banners down  The tarpaulins sparked outrage among social media users  A July 17, 2018, press report stated the following: Protesters held a rally in front of the Chinese Consulate [in San Francisco] before proceeding to the Philippine Consulate downtown, demanding that China "get out of Philippine territory in the West Philippine Sea " The protest was timed with others in Los Angeles and Vancouver on the second anniversary of the UN's Permanent Court of Arbitration ruling that China had no right to the territory it was claiming  Filipino American Human Rights Advocates (FAHRA) in a statement celebrated the court's finding that "China's historical claim of the "nine-dash line" [is] illegal and without basis " "China continues to violate the UN's decision with the backing of its puppet Philippine government headed by President Duterte, who is deceived by the 'build, build, build' economic push while China establishes a 'steal, steal, steal' approach to islands and territories belonging to the Exclusive Economic Zone (EEZ) of the Philippines as determined by UN," the statement lamented  FAHRA also found it unacceptable that Filipino fishermen must now ask permission to fish in the Philippine waters from "a Chinese master " "Duterte is beholden to the $15-billion loan with monstrous interest rate and China's investments in Boracay and Marawi, at the expense of Philippine sovereignty," FAHRA claimed  "This is not to mention that China remains to be the premier supplier of illegal drugs to the country through traders that include the son, Paolo Duterte, with his P6 billion shabu shipment to Davao," it further charged  The group demanded that "China abide by the UN International Tribunal Court's decision two years ago, to honor the full sovereignty of the Philippines over all territories at the Exclusive Economic Zone (EEZ) including the West Philippine Sea and the dismantling of the nuclear missiles and all military facilities installed by the Chinese government at the Spratly islands meant to coerce the Filipinos and all peace-loving people of Southeast Asia who clamor for equal respect and equal sovereignty in the area" among others  Appendix E  Additional Elements of China's Approach to Maritime Disputes This appendix presents background information on additional elements of China's approach to the maritime disputes in the SCS and ECS  Map of Nine-Dash Line China depicts its claims in the SCS using the so-called map of the nine-dash line—a Chinese map of the SCS showing nine line segments that, if connected, would enclose an area covering roughly 90% (earlier estimates said about 80%) of the SCS ( Figure E-1 )  The area inside the nine line segments far exceeds what is claimable as territorial waters under customary international law of the sea as reflected in UNCLOS, and, as shown in Figure E-2 , includes waters that are within the claimable EEZs (and in some places are quite near the coasts) of the Philippines, Malaysia, Brunei, and Vietnam  The map of the nine-dash line, also called the U-shaped line or the cow tongue, predates the establishment of the People's Republic of China (PRC) in 1949  The map has been maintained by the PRC government, and maps published in Taiwan also show the nine line segments  In a document submitted to the United Nations on May 7, 2009, which included the map shown in Figure E-1 as an attachment, China stated the following: China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map [of the nine-dash line])  The above position is consistently held by the Chinese Government, and is widely known by the international community  The map does not always have exactly nine dashes  Early versions of the map had as many as 11 dashes, and a map of China published by the Chinese government in June 2014 includes 10 dashes  The exact positions of the dashes have also varied a bit over time  China has maintained ambiguity over whether it is using the map of the nine-dash line to claim full sovereignty over the entire sea area enclosed by the nine-dash line, or something less than that  Maintaining this ambiguity can be viewed as an approach that preserves flexibility for China in pursuing its maritime claims in the SCS while making it more difficult for other parties to define specific objections or pursue legal challenges to those claims  It does appear clear, however, that China at a minimum claims sovereignty over the island groups inside the nine line segments—China's domestic Law on the Territorial Sea and Contiguous Zone, enacted in 1992, specifies that China claims sovereignty over all the island groups inside the nine line segments  China's implementation on January 1, 2014, of a series of fishing regulations covering much of the SCS suggests that China claims at least some degree of administrative control over much of the SCS  An April 30, 2018, blog post states the following: In what is likely a new bid to reinforce and even expand China's sweeping territorial claims in the South China Sea, a group of Chinese scholars recently published a "New Map of the People's Republic of China " The alleged political national map, reportedly first published in April 1951 but only "discovered" through a recent national archival investigation, could give new clarity to the precise extent of China's official claims in the disputed waters  Instead of dotted lines, as reflected in China's U-shaped Nine-Dash Line claim to nearly all of the South China Sea, the newly discovered map provides a solid "continuous national boundary line and administrative region line " The Chinese researchers claim that through analysis of historical maps, the 1951 solid-line map "proves" beyond dispute that the "U-boundary line is the border of China's territorial sea" in the South China Sea  They also claim that the solid administrative line overlaying the U-boundary "definitely indicated that the sovereignty of the sea" enclosed within the U-boundary "belonged to China " The study, edited by the Guanghua and Geosciences Club and published by SDX Joint Publishing Company, has not been formally endorsed by the Chinese government  April 2018 Press Report of Proposal for Continuous Boundary Line in SCS An April 22, 2018, press report states the following: Researchers are proposing a new boundary in the South China Sea that they say will help the study of natural science while potentially adding weight to China's claims over the disputed waters, according to a senior scientist involved in the government-funded project  The new boundary will help to define more clearly China's claims in the contested region, but it is not clear whether or when it will be officially adopted by Beijing, the scientist said  A precise continuous line will split the Gulf of Tonkin between China and Vietnam, go south into waters claimed by Malaysia, take a U-turn to the north along the west coast of the Philippines and finish at the southeast of Taiwan  For decades, China's sovereign claim in the South China Sea has been murky, in large part because of the use of a segmented, vaguely located borderline known as the 'nine-dash line'  A United Nations tribunal ruled in July 2016 that China had no legal basis to claim the area within the dash lines  One reason for China losing the case was that it could not define the territory precisely  However, analysts said Beijing was unlikely to officially change the nine-dash line any time soon, in the face of potential international opposition     The vast area of blue outlined by the new boundary, hanging on a map like a Christmas stocking under South China, overlaps the dashes and fills in the gaps  It includes all contested waters, such as the Paracel Islands, the Spratly Islands, James Shoal and Scarborough Shoal  The boundary would determine for the first time the exact area that China claimed to own with historic rights in the South China Sea, according to the researcher  Its purpose was partly the study of natural science and partly driven by a political motivation "to strengthen China's claims" over the waters to prepare for possible changes in its South China Sea policy in the future, the researcher said  Within the boundary, China would claim the right to activities ranging from fishing, prospecting and mining for energy or mineral resources to the construction of military bases with deep water ports or airports  Other countries' access to these rights would, however, be open for discussion, as is the case at Scarborough Shoal, which China controls but allows Philippine fishing boats to access  While Beijing would consider the area within the boundary its territory, other countries would still have freedom of navigation, the researcher said     "Soon we will have a clear idea of what belongs to us in the South China Sea and what does not," said the researcher  "This will allow us to better plan and coordinate the efforts to protect our national interest in the region while reducing the risk of conflict with other countries caused by the absence of a border over the ocean "    "More often, when we are sending vessels out to the sea or looking down at an area via satellite, we are not sure whether it was our water," said the researcher in the boundary-drawing project  "The nine-dash line can no longer meet the demands of increasing Chinese activities in the South China Sea "    The continuous boundary was generated not only by curve-extending, gap-filling algorithms on computer  It was also based on a solid piece of historic evidence, according to the project team  In 1951, an official map approved by the central government of China marked the China-claimed area in the South China Sea with a pair of non-stopping lines  There was an inner black line indicating the sovereign boundary and an outer red line representing where China could exercise administrative power  "We were thrilled when we found the map," the researcher said  "It is something we can show the world " A detailed description of the map was published by the project team in a paper in domestic academic journal China Science Bulletin in March this year  Its authors recommended using the continuous U-shape boundary line as a replacement for the nine-dash line  The "U-boundary is the border of China's sea in the South China Sea, and its sovereignty belongs to China", the authors wrote in the paper  It "can further express the certainty of the integrity, continuity and border of China's seas in the South China Sea", they wrote, adding that it was "more vivid, accurate, complete and scientific"  Professor Yu Minyou, director of the China Institute of Boundary and Ocean Studies at Wuhan University, said that if the old map was published with government approval, which was usually the case in China, "it surely will add legal weight to China's claim" in the region     But other countries should bear in mind that it did not represent the Chinese government's position as long as the dash lines stayed on official maps, Yu said, adding that China's strategy for the South China Sea was "open and clear"  "China wants to achieve peace, stability, harmony and prosperity in the region," he said  "We are willing to share natural resources with other countries and leave the disputes to be solved in the future  "What we are doing now is creating a suitable environment for the final settlement of the issue " A government expert at the National Institute for South China Sea Studies in Haikou, Hainan, said the continuous boundary would serve as a useful tool for some studies of natural science  But it was highly unlikely to be printed on an official map, said the expert, who requested not to be named because he was not allowed to speak to overseas media about sensitive issues  "To my knowledge, the Chinese government currently has no plan to change the dash lines," he said  "Most diplomats and ocean law experts will oppose joining the dashes " The tension in the South China Sea has eased significantly in recent times, with neighbouring countries such as the Philippines and Vietnam no longer seeking direct confrontation with China over disputed areas  "Things are moving towards the right direction," the government expert said  "It is not the best time to cut a boundary " September 2017 Press Report of Potential New "Four-Sha" Legal Claim A September 21, 2017, press report states the following: The Chinese government recently unveiled a new legal tactic to promote Beijing's aggressive claim to own most of the strategic South China Sea  The new narrative that critics are calling "lawfare," or legal warfare, involves a shift from China's so-called "9-Dash Line" ownership covering most of the sea  The new lawfare narrative is called the "Four Sha"—Chinese for sand—and was revealed by Ma Xinmin, deputy director general in the Foreign Ministry's department of treaty and law, during a closed-door meeting with State Department officials last month  China has claimed three of the island chains in the past and recently added a fourth zone in the northern part of the sea called the Pratas Islands near Hong Kong  The other locations are the disputed Paracels in the northwestern part and the Spratlys in the southern sea  The fourth island group is located in the central zone and includes Macclesfield Bank, a series of underwater reefs and shoals  China calls the island groups Dongsha, Xisha, Nansha, and Zhongsha, respectively  Ma, the Foreign Ministry official, announced during the meetings in Boston on Aug  28 and 29 that China is asserting sovereignty over the Four Sha through several legal claims  He stated the area is China's historical territorial waters and also part of China's 200-mile Exclusive Economic Zone that defines adjacent zones as sovereign territory  Beijing also claims ownership by asserting the Four Sha are part of China's extended continental shelf  U S  officials attending the session expressed surprise at the new Chinese ploy to seek control over the sea as something not discussed before     A State Department notice at the end of what was billed as an annual U S -China Dialogue on the Law of the Sea and Polar Issues made no mention of the new Chinese lawfare tactic  The statement said only that officials from foreign affairs and maritime agencies "exchanged views on a wide range of issues related to oceans, the law of the sea, and the polar regions " A September 25, 2017, blog post about the claim states the following: While dropping or even de-emphasizing China's Nine-Dash Line claim in favor of the Four Shas has important diplomatic and political implications, the legal significance of such a shift is harder to assess  The constituent parts of China's Four Sha claims have long been set forth publicly in Chinese domestic law and official statements  Based on what we know so far, these new Chinese legal justifications are no more lawful than China's Nine-Dash Line claim  The challenge for critics of Chinese claims in the South China Sea, however, will be effectively explaining and articulating why this shift does not actually strengthen China's legal claims in the South China Sea  The Four Sha claim has a long pedigree in Chinese law and practice  China's 1992 law on the territorial sea and contiguous zone, for example, declared that China's land territory included the "Dongsha island group, Xisha island group, Zhongsha island group, [and] Nansha island group " A 2016 white paper disputing the Philippines' claims in the South China Sea arbitral process similarly claimed that: China's Nanhai Zhudao (the South China Sea Islands) consist of Dongsha Qundao (the Dongsha Islands), Xisha Qundao (the Xisha Islands), Zhongsha Qundao (the Zhongsha Islands) and Nansha Qundao (the Nansha Islands)  These Islands include, among others, islands, reefs, shoals and cays of various numbers and sizes     In a 2016 white paper, Beijing stated that, "China has, based on Nanhai Zhudao [the "Four Sha"], internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf " Neither the white paper nor the Beacon's report explain how China derives these maritime zones from the four island groups     Because China is not constituted "wholly by one or more archipelagos" (think Indonesia or the Philippines), the U S  and most countries would view straight baselines around an island group as contrary to the UN Convention on the Law of the Sea (UNCLOS)     For this reason, this new Chinese legal strategy is even weaker than the Nine-Dash Line given that it clearly violates UNCLOS (e g , Articles 46 and 47)  Most Chinese defenses of the Nine Dash Line argued that the claim predated China's accession to UNCLOS and therefore not governed by it  Despite the legal weaknesses of its possible new strategy, China may still reap some benefits from trading the Nine-Dash Line for the Four Shas  First, the Chinese leadership may have realized that the Nine Dash Line has become too much of a diplomatic liability  The Nine-Dash Line is completely sui generis and no other state has made a historic maritime claim anything like it  For this reason, the Nine-Dash Line makes China an easy target for foreign criticism in a way that straight baselines around island groups probably will not  Second, by adopting language more similar to that found in UNCLOS, China may be betting that it can tamp down criticism, and win potential partners in the region     Third, and most intriguingly, China may have concluded that it can better shape (or undermine, depending on your point of view) the law of the sea by adopting UNCLOS terminology     So while we might be encouraged to see the Nine-Dash Line pass into the (legal) dustbins of history, we should be skeptical about whether the Four Shas herald a new more modest Chinese role in the South China Sea  China's legal justification for the Four Shas is just as weak, if not weaker, than its Nine-Dash Line claim  But explaining why the Four Shas is weak and lawless will require sophisticated legal analysis married with effective public messaging  Comparison with U S  Actions Toward Caribbean and Gulf of Mexico Some observers have compared China's approach toward its near-seas region with the U S  approach toward the Caribbean and the Gulf of Mexico in the age of the Monroe Doctrine  It can be noted, however, that there are significant differences between China's approach to its near-seas region and the U S  approach—both in the 19 th and 20 th centuries and today—to the Caribbean and the Gulf of Mexico  Unlike China in its approach to its near-seas region, the United States has not asserted any form of sovereignty or historical rights over the broad waters of the Caribbean or Gulf of Mexico (or other sea areas beyond the 12-mile limit of U S  territorial waters), has not published anything akin to the nine-dash line for these waters (or other sea areas beyond the 12-mile limit), and does not contest the right of foreign naval forces to operate and engage in various activities in waters beyond the 12-mile limit  Appendix F  U S  Position on Operational Rights in EEZs This appendix presents additional background information on the U S  position on the issue of operational rights of military ships in the EEZs of other countries  Operational Rights in EEZs Regarding a coastal state's rights within its EEZ, Scot Marciel, then-Deputy Assistant Secretary, Bureau of East Asian and Pacific Affairs, stated the following as part of his prepared statement for a July 15, 2009, hearing before the East Asian and Pacific Affairs Subcommittee of the Senate Foreign Relations Committee: I would now like to discuss recent incidents involving China and the activities of U S  vessels in international waters within that country's Exclusive Economic Zone (EEZ)  In March 2009, the survey ship USNS Impeccable was conducting routine operations, consistent with international law, in international waters in the South China Sea  Actions taken by Chinese fishing vessels to harass the Impeccable put ships of both sides at risk, interfered with freedom of navigation, and were inconsistent with the obligation for ships at sea to show due regard for the safety of other ships  We immediately protested those actions to the Chinese government, and urged that our differences be resolved through established mechanisms for dialogue—not through ship-to-ship confrontations that put sailors and vessels at risk  Our concern over that incident centered on China's conception of its legal authority over other countries' vessels operating in its Exclusive Economic Zone (EEZ) and the unsafe way China sought to assert what it considers its maritime rights  China's view of its rights on this specific point is not supported by international law  We have made that point clearly in discussions with the Chinese and underscored that U S  vessels will continue to operate lawfully in international waters as they have done in the past  As part of his prepared statement for the same hearing, Robert Scher, then-Deputy Assistant Secretary of Defense, Asian and Pacific Security Affairs, Office of the Secretary of Defense, stated that we reject any nation's attempt to place limits on the exercise of high seas freedoms within an exclusive economic zones [sic] (EEZ)  Customary international law, as reflected in articles 58 and 87 of the 1982 United Nations Convention on the Law of the Sea, guarantees to all nations the right to exercise within the EEZ, high seas freedoms of navigation and overflight, as well as the traditional uses of the ocean related to those freedoms  It has been the position of the United States since 1982 when the Convention was established, that the navigational rights and freedoms applicable within the EEZ are qualitatively and quantitatively the same as those rights and freedoms applicable on the high seas  We note that almost 40% of the world's oceans lie within the 200 nautical miles EEZs, and it is essential to the global economy and international peace and security that navigational rights and freedoms within the EEZ be vigorously asserted and preserved  As previously noted, our military activity in this region is routine and in accordance with customary international law as reflected in the 1982 Law of the Sea Convention  As mentioned earlier in the report, if China's position on whether coastal states have a right under UNCLOS to regulate the activities of foreign military forces in their EEZs were to gain greater international acceptance under international law, it could substantially affect U S  naval operations not only in the SCS and ECS (see Figure F-1 for EEZs in the SCS and ECS), but around the world, which in turn could substantially affect the ability of the United States to use its military forces to defend various U S  interests overseas  As shown in Figure F-2 , significant portions of the world's oceans are claimable as EEZs, including high-priority U S  Navy operating areas in the Western Pacific, the Persian Gulf, and the Mediterranean Sea  Some observers, in commenting on China's resistance to U S  military survey and surveillance operations in China's EEZ, have argued that the United States would similarly dislike it if China or some other country were to conduct military survey or surveillance operations within the U S  EEZ  Skeptics of this view argue that U S  policy accepts the right of other countries to operate their military forces freely in waters outside the 12-mile U S  territorial waters limit, and that the United States during the Cold War acted in accordance with this position by not interfering with either Soviet ships (including intelligence-gathering vessels known as AGIs) that operated close to the United States or with Soviet bombers and surveillance aircraft that periodically flew close to U S  airspace  The U S  Navy states that When the commonly recognized outer limit of the territorial sea under international law was three nautical miles, the United States recognized the right of other states, including the Soviet Union, to exercise high seas freedoms, including surveillance and other military operations, beyond that limit  The 1982 Law of the Sea Convention moved the outer limit of the territorial sea to twelve nautical miles  In 1983, President Reagan declared that the United States would accept the balance of the interests relating to the traditional uses of the oceans reflected in the 1982 Convention and would act in accordance with those provisions in exercising its navigational and overflight rights as long as other states did likewise  He further proclaimed that all nations will continue to enjoy the high seas rights and freedoms that are not resource related, including the freedoms of navigation and overflight, in the Exclusive Economic Zone he established for the United States consistent with the 1982 Convention  DOD states that the PLA Navy has begun to conduct military activities within the Exclusive Economic Zones (EEZs) of other nations, without the permission of those coastal states  Of note, the United States has observed over the past year several instances of Chinese naval activities in the EEZ around Guam and Hawaii  One of those instances was during the execution of the annual Rim of the Pacific (RIMPAC) exercise in July/August 2012  While the United States considers the PLA Navy activities in its EEZ to be lawful, the activity undercuts China's decades-old position that similar foreign military activities in China's EEZ are unlawful  In July 2014, China participated, for the first time, in the biennial U S -led Rim of the Pacific (RIMPAC) naval exercise, the world's largest multilateral naval exercise  In addition to the four ships that China sent to participate in RIMPAC, China sent an uninvited intelligence-gathering ship to observe the exercise without participating in it  The ship conducted operations inside U S  EEZ off Hawaii, where the exercise was located  A July 29, 2014, press report stated that The high profile story of a Chinese surveillance ship off the cost of Hawaii could have a positive aspect for U S  operations in the Pacific, the head of U S  Pacific Command (PACOM) said in a Tuesday [July 29] afternoon briefing with reporters at the Pentagon  "The good news about this is that it's a recognition, I think, or acceptance by the Chinese for what we've been saying to them for sometime," PACOM commander Adm  Samuel Locklear told reporters  "Military operations and survey operations in another country's [Exclusive Economic Zone]—where you have your own national security interest—are within international law and are acceptable  This is a fundamental right nations have " One observer stated the following: The unprecedented decision [by China] to send a surveillance vessel while also participating in the RIMPAC exercises calls China's proclaimed stance on international navigation rights [in EEZ waters] into question    During the Cold War, the U S  and Soviets were known for spying on each other's exercises  More recently, Beijing sent what U S  Pacific Fleet spokesman Captain Darryn James called "a similar AGI ship" to Hawaii to monitor RIMPAC 2012—though that year, China was not an official participant in the exercises         the spy ship's presence appears inconsistent with China's stance on military activities in Exclusive Economic Zones (EEZs)     That Beijing's AGI [intelligence-gathering ship] is currently stationed off the coast of Hawaii suggests either a double standard that could complicate military relations between the United States and China, or that some such surveillance activities are indeed legitimate—and that China should clarify its position on them to avoid perceptions that it is trying to have things both ways     In its response to the Chinese vessel's presence, the USN has shown characteristic restraint  Official American policy permits surveillance operations within a nation's EEZ, provided they remain outside of that nation's 12-nautical mile territorial sea (an EEZ extends from 12 to 200 nautical miles unless this would overlap with another nations' EEZ)  U S  military statements reflect that position unambiguously     That consistent policy stance and accompanying restraint have characterized the U S  attitude toward foreign surveillance activity since the Cold War  Then, the Soviets were known for sending converted fishing ships equipped with surveillance equipment to the U S  coast, as well as foreign bases, maritime choke points, and testing sites  The U S  was similarly restrained in 2012, when China first sent an AGI to observe RIMPAC     China has, then, sent a surveillance ship to observe RIMPAC in what appears to be a decidedly intentional, coordinated move—and in a gesture that appears to contradict previous Chinese policy regarding surveillance and research operations (SROs)  The U S  supports universal freedom of navigation and the right to conduct SROs in international waters, including EEZs, hence its restraint when responding to the current presence of the Chinese AGI  But the PRC opposes such activities, particularly on the part of the U S , in its own EEZ     How then to reconcile the RIMPAC AGI with China's stand on surveillance activities? China maintains that its current actions are fully legal, and that there is a distinct difference between its operations off Hawaii and those of foreign powers in its EEZ  The PLAN's designated point of contact declined to provide information and directed inquiries to China's Defense Ministry  In a faxed statement to Reuters, the Defense Ministry stated that Chinese vessels had the right to operate "in waters outside of other country's territorial waters," and that "China respects the rights granted under international law to relevant littoral states, and hopes that relevant countries can respect the legal rights Chinese ships have " It did not elaborate  As a recent Global Times article hinted—China's position on military activities in EEZs is based on a legal reading that stresses the importance of domestic laws  According to China maritime legal specialist Isaac Kardon, China interprets the EEZ articles in the United Nations Convention on the Law of the Sea (UNCLOS) as granting a coastal state jurisdiction to enforce its domestic laws prohibiting certain military activities—e g , those that it interprets to threaten national security, economic rights, or environmental protection—in its EEZ  China's domestic laws include such provisions, while those of the United States do not  Those rules would allow China to justify its seemingly contradictory approach to AGI operations—or, as Kardon put it, "to have their cake and eat it too " Therefore, under the Chinese interpretation of UNCLOS, its actions are neither hypocritical nor illegal—yet do not justify similar surveillance against China  Here, noted legal scholar Jerome Cohen emphasizes, the U S  position remains the globally dominant view—"since most nations believe the coastal state has no right to forbid surveillance in its EEZ, they do not have domestic laws that do so " This renders China's attempted constraints legally problematic, since "international law is based on reciprocity " To explain his interpretation of Beijing's likely approach, Cohen invokes the observation that a French commentator made several decades ago in the context of discussing China's international law policy regarding domestic legal issues: "I demand freedom from you in the name of your principles  I deny it to you in the name of mine " Based on his personal experience interacting with Chinese officials and legal experts, Kardon adds, "China is increasingly confident that its interpretation of some key rules and—most critically—its practices reinforcing that interpretation can over time shape the Law of the Sea regime to suit its preferences " But China is not putting all its eggs in that basket  There are increasing indications that it is attempting to promote its EEZ approach vis-à-vis the U S  not legally but politically  "Beijing is shifting from rules- to relations-based objections," Naval War College China Maritime Studies Institute Director Peter Dutton observes  "In this context, its surveillance operations in undisputed U S  EEZs portend an important shift, but that does not mean that China will be more flexible in the East or South China Seas " The quasi-authoritative Chinese commentary that has emerged thus far supports this interpretation     [A recent statement from a Chinese official] suggests that Beijing will increasingly oppose U S  SROs on the grounds that they are incompatible with the stable, cooperative Sino-American relationship that Beijing and Washington have committed to cultivating  The Obama Administration must ensure that the "new-type Navy-to-Navy relations" that Chinese Chief of Naval Operations Admiral Wu Shengli has advocated to his U S  counterpart does not contain expectations that U S  SROs will be reduced in nature, scope, or frequency     China's conducting military activities in a foreign EEZ implies that, under its interpretation, some such operations are indeed legal  It therefore falls to China now to clarify its stance—to explain why its operations are consistent with international law, and what sets them apart from apparently similar American activities  If China does not explain away the apparent contradiction in a convincing fashion, it risks stirring up increased international resentment—and undermining its relationship with the U S  Beijing is currently engaging in activities very much like those it has vociferously opposed  That suggests the promotion of a double standard untenable in the international system, and very much at odds with the relationships based on reciprocity, respect, and cooperation that China purports to promote     If, however, China chooses to remain silent, it will likely have to accept—at least tacitly, without harassing—U S  surveillance missions in its claimed EEZ  So, as we watch for clarification on Beijing's legal interpretation, it will also be important to watch for indications regarding the next SROs in China's EEZ  In September 2014, a Chinese surveillance ship operated in U S  EEZ waters near Guam as it observed a joint-service U S  military exercise called Valiant Shield  A U S  spokesperson for the exercise stated the following: "We'd like to reinforce that military operations in international commons and outside of territorial waters and airspace is a fundamental right that all nations have     The Chinese were following international norms, which is completely acceptable " Appendix G  Options Suggested by Observers for Strengthening U S  Actions This appendix presents a bibliography of some recent writings by observers who have suggested options (or are reporting on options suggested by others) for strengthening U S  actions for responding to China's actions in the SCS and ECS, organized by date, beginning with the most-recent item  Andrew S  Erickson, "Maritime Numbers Game, Understanding and Responding to China's Three Sea Forces," Indo-Pacific Defense Forum , January 28, 2019  James R  Holmes, "Use It or Lose It: Seagoing Nations Must Defend Embattled Waterways," The Hill , January 27, 2019  Gregory Poling and Eric Sayers, "Time to Make Good on the U S -Philippine Alliance," War on the Rocks , January 21, 2019  Gregory Poling and Bonnie S  Glaser, "How the U S  Can Step Up in the South China Sea," Foreign Affairs , January 16, 2019  Zack Cooper and Gregory Poling, "America's Freedom of Navigation Operations Are Lost at Sea, Far Wider Measures Are Needed to Challenge Beijing's Maritime Aggression," Foreign Policy , January 8, 2019  Andrew S  Erickson, "Shining a Spotlight: Revealing China's Maritime Militia to Deter its Use," National Interest , November 25, 2018  Eric Sayers, "Assessing America's Indo-Pacific Budget Shortfall," War on the Rocks , November 15, 2018  Patrick N  Cronin and Richard Javad Heydarian, "This Is How America and the Philippines Can Upgrade Their Alliance," National Interest , November 12, 2018  John Lee, Freedom of Navigation and East Asian Stability: Countering Beijing's Campaign of Historical Revisionism ," Hudson Institute, November 2018, 8 pp  Ryan Martinson and Peter Dutton, "Chinese Scientists Want to Conduct Research in U S  Waters—Should Washington Let Them?" National Interest , November 4, 2018  Hunter Stires, "Understanding and Defeating China's Maritime Insurgency in the South china Sea," National Interest , November 1, 2018  Robert D  Kaplan, "How President Trump Is Helping Beijing Win in the South China Sea," Washington Post , October 9, 2018  Tuan Pham, "China's Worth Nightmare: RIMPAC 2020 in the South China Sea?" National Interest , September 29, 2018  Patrick M  Cronin, "China is Waging a Maritime Insurgency in the South China Sea  It's Time for the Unitd States to Counter It " National Interest , August 6, 2018  Shigeki Sakamoto, "China's South China Sea Project Must Not Succeed; The International Community Shouldn't Quietly Let China Ignore the 2016 [Arbitral Tribunal] Decision " Diplomat , August 6, 2018  James Amedeo, "America Needs a Clear Strategy to Counter China's Expansion in the South China Sea," National Interest , August 1, 2018  Lynn Kuok, "Countering China's Actions in the South China Sea," Lawfare , August 1, 2018  Timothy Perry, "Use Maritime-Law Trends to Offset Beijing's Gains in the South China Sea," Defense One , July 24, 2018  J  Michael Cole, "It's Time to Stop China's Seaward Expansion," National Interest , July 21, 2018  Lindsey W  Ford, "Was China's RIMPAC Exclusion An Opening or a Wasted Shot?" East Asia Forum , July 20, 2018  Lynn Kuok, "China Is Winning in the South China Sea," Wall Street Journal , July 17, 2018  "Washington and Its Allies Need to Contain Beijing," Financial Times , July 1, 2018  Patrick M  Cronin and Melodiw Ha, "Toward a New maritime Strategy in the South China Sea," The Diplomat , June 22, 2018  (A similar version was posted as: Patrick M  Cronin and Melodie Ha, "Toward a New Maritime Strategy in the South China Sea," CSIS, June 21, 2018 (PacNet #42)  Paul J  Leaf, "Taiwan and the South China Sea Must Be Taken Off the Back Burner," National Interest , June 18, 2018  Robert E  McCoy, "A Better Way to Repel China in the South China Sea," Asia Times , June 8, 2018  Robert Farley, "The South China Sea Conundrum for the United States," The Diplomat , June 5 2018  Joel Gehrke, "Marco Rubio: US Must Develop Plan to 'Destroy' Chinese Assets in South China Sea," Washington Examiner , June 4, 2018  Duncan DeAeth, "Taiwan Should Invite US to Open Military Base on Taiping Island, Says DPP Think-Tank," Taiwan News , June 4, 2018  Julian Ku, "It's Time for South China Sea Economic Sanctions," Lawfare , June 1, 2018  Eric Sayers, "Time to Launch a Combined Maritime Task Force for the Pacific," War on the Rocks , June 1, 2018  Matthew Krull, "America's Annual Naval Patrol Report and How to Fix It," National Interest , May 29, 2018  Tuan N  Pham, "A Sign of the Times: China's Recent Actions and the Undermining of Global Rules, Pt  3," CIMSEC (Center for International Maritime Security), May 24, 2018  Ryan D  Martinson and Andrew Erickson, "Re-Orienting American Seapower for the China Challenge," War on the Rocks , May 10, 2018  Ben Cipperley, "In the Era of Great Power Competition, the US Needs to Step Up Its Game," The Diplomat , May 8, 2018  Stephen Bryen, "How to Counter China's Fortified Islands in South China Sea," Asia Times , May 5, 2018  Ely Ratner, "Exposing China's Actions in the South China Sea," Council on Foreign Relations, April 6, 2018  Shawn Lansing, "A White Hull Approach to Taming the Dragon: Using the Coast Guard to Counter China," War on the Rocks , February 22, 2018  Dean Cheng, "Wanted: A Strategy to Limit China's Grand Plans for the South China Sea," National Interest , January 30, 2018  Hal Brands, "China Hasn't Won the Pacific (Unless You Think It Has)," Bloomberg , January 5, 2018 

ground_truth: China's actions in recent years in the South China Sea (SCS)—particularly its island-building and base-construction activities at sites that it occupies in the Spratly Islands—have heightened concerns among U.S. observers that China is rapidly gaining effective control of the SCS, an area of strategic, political, and economic importance to the United States and its allies and partners, particularly those in the Indo-Pacific region. U.S. Navy Admiral Philip Davidson, in his responses to advance policy questions from the Senate Armed Services Committee for an April 17, 2018, hearing to consider his nomination to become Commander, U.S. Pacific Command (PACOM), stated that "China is now capable of controlling the South China Sea in all scenarios short of war with the United States." Chinese control of the SCS—and, more generally, Chinese domination of China's near-seas region, meaning the SCS, the East China Sea (ECS), and the Yellow Sea—could substantially affect U.S. strategic, political, and economic interests in the Indo-Pacific region and elsewhere. China is a party to multiple territorial disputes in the SCS and ECS, including, in particular, disputes with multiple neighboring countries over the Paracel Islands, Spratly Islands, and Scarborough Shoal in the SCS, and with Japan over the Senkaku Islands in the ECS. Up through 2014, U.S. concern over these disputes centered more on their potential for causing tension, incidents, and a risk of conflict between China and its neighbors in the region, including U.S. allies Japan and the Philippines and emerging partner states such as Vietnam. While that concern remains, particularly regarding the potential for a conflict between China and Japan involving the Senkaku Islands, U.S. concern since 2014 (i.e., since China's island-building activities in the Spratly Islands were first publicly reported) has shifted increasingly to how China's strengthening position in the SCS may be affecting the risk of a U.S.-China crisis or conflict in the SCS and the broader U.S.-Chinese strategic competition. In addition to territorial disputes in the SCS and ECS, China is involved in a dispute, particularly with the United States, over whether China has a right under international law to regulate the activities of foreign military forces operating within China's exclusive economic zone (EEZ). The position of the United States and most other countries is that while international law gives coastal states the right to regulate economic activities (such as fishing and oil exploration) within their EEZs, it does not give coastal states the right to regulate foreign military activities in the parts of their EEZs beyond their 12-nautical-mile territorial waters. The position of China and some other countries (i.e., a minority group among the world's nations) is that UNCLOS gives coastal states the right to regulate not only economic activities, but also foreign military activities, in their EEZs. The dispute appears to be at the heart of multiple incidents between Chinese and U.S. ships and aircraft in international waters and airspace since 2001, and has potential implications not only for China's EEZs, but for U.S. naval operations in EEZs globally, and for international law of the sea. A key issue for Congress is how the United States should respond to China's actions in the SCS and ECS—particularly its island-building and base-construction activities in the Spratly Islands—and to China's strengthening position in the SCS. A key oversight question for Congress is whether the Trump Administration has an appropriate strategy—and an appropriate amount of resources for implementing that strategy—for countering China's "salami-slicing" strategy or gray zone operations for gradually strengthening its position in the SCS, for imposing costs on China for its actions in the SCS and ECS, and for defending and promoting U.S. interests in the region.