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i 

22–458 2018

[H.A.S.C. No. 114–140] 

SEAPOWER AND PROJECTION FORCES 

IN THE SOUTH CHINA SEA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SEAPOWER AND 

PROJECTION FORCES 

OF THE

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD 

SEPTEMBER 21, 2016 
(II) 

SUBCOMMITTEE ON SEAPOWER AND PROJECTION FORCES 

J. RANDY FORBES, Virginia, Chairman 

K. MICHAEL CONAWAY, Texas 

BRADLEY BYRNE, Alabama 

ROBERT J. WITTMAN, Virginia 

DUNCAN HUNTER, California, Vice Chair 

VICKY HARTZLER, Missouri 

PAUL COOK, California 

JIM BRIDENSTINE, Oklahoma 

JACKIE WALORSKI, Indiana 

RYAN K. ZINKE, Montana 

STEPHEN KNIGHT, California 

STEVE RUSSELL, Oklahoma 

JOE COURTNEY, Connecticut 

JAMES R. LANGEVIN, Rhode Island 

RICK LARSEN, Washington 

MADELEINE Z. BORDALLO, Guam 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

SCOTT H. PETERS, California 

TULSI GABBARD, Hawaii 

GWEN GRAHAM, Florida 

SETH MOULTON, Massachusetts 

DAVE SIENICKI, Professional Staff Member 

PHIL MACNAUGHTON, Professional Staff Member 

JODI BRIGNOLA, Clerk 
(III) 

C O N T E N T S 

Page 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

Courtney, Hon. Joe, a Representative from Connecticut, Ranking Member, 

Subcommittee on Seapower and Projection Forces ........................................... 9 

Forbes, Hon. J. Randy, a Representative from Virginia, Chairman, Subcommittee on Seapower and Projection Forces ........................................................ 1 

WITNESSES 

Erickson, Dr. Andrew S., Ph.D., Professor of Strategy, China Maritime Studies Institute, U.S. Naval War College ................................................................ 7 

Glaser, Bonnie S., Senior Adviser for Asia and Director, China Power Project, 

Center for Strategic and International Studies ................................................. 2 

Kraska, Dr. James, S.J.D., Professor of International Law, Oceans Law and 

Policy, Stockton Center for the Study of International Law, U.S. Naval 

War College .......................................................................................................... 4 

APPENDIX 

PREPARED STATEMENTS: 

Courtney, Hon. Joe ........................................................................................... 33 

Erickson, Dr. Andrew S. .................................................................................. 74 

Forbes, Hon. J. Randy ...................................................................................... 31 

Glaser, Bonnie S. .............................................................................................. 35 

Kraska, Dr. James ............................................................................................ 46 

DOCUMENTS SUBMITTED FOR THE RECORD: 

[There were no Documents submitted.] 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

[There were no Questions submitted during the hearing.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. Langevin ..................................................................................................... 93 

(1) 

SEAPOWER AND PROJECTION FORCES IN THE 

SOUTH CHINA SEA 

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, SUBCOMMITTEE ON SEAPOWER AND PROJECTION FORCES, Washington, DC, Wednesday, September 21, 2016. 

The subcommittee met, pursuant to call, at 3:55 p.m., in room 

2212, Rayburn House Office Building, Hon. J. Randy Forbes (chairman of the subcommittee) presiding. 

OPENING STATEMENT OF HON. J. RANDY FORBES, A REPRESENTATIVE FROM VIRGINIA, CHAIRMAN, SUBCOMMITTEE 

ON SEAPOWER AND PROJECTION FORCES 

Mr. FORBES. Today this subcommittee convenes to receive testimony on seapower and projection forces in the South China Sea. 

Providing testimony today are Ms. Bonnie S. Glaser, Senior Adviser for Asia and Director, China Power Project, Center for Strategic and International Studies [CSIS]. Thank you so much for 

being with us. Also, Dr. James Kraska, Professor of Oceans Law 

and Policy, U.S. Naval War College. Thank you for joining us, 

James. And also, Dr. Andrew S. Erickson, Professor of Strategy, 

China Maritime Studies Institute at the U.S. Naval War College. 

And, Andrew, we thank you for being here as well. 

Our topic today is the South China Sea and the role that America’s seapower and projection forces can play in maintaining peace, 

prosperity, and the rule of international law in that critical body 

of water. Like Berlin in the Cold War, the South China Sea has 

become a symbol and a flashpoint of the increasingly competitive 

relationship between two great powers, a place of both inherent 

and symbolic importance. 

Over the last few years, it has become the place that the world 

is watching to see how the balance of power in Asia is changing 

and to measure America’s willingness and ability to deter coercion 

and aggression in that important region. While I approve of very 

few of this administration’s foreign policies, I do believe that their 

early instinct to devote more resources and attention to the IndoAsia-Pacific region was correct. That said, more than rhetoric is required to counterbalance China’s growing military power and assertiveness. Last year, myself, Chairman Thornberry, and 27 other 

members of this chamber signed a letter to the President and the 

Secretary of Defense, calling upon them to take a stronger stance 

in the South China Sea, to increase U.S. military presence in this 

critical region, and ramp up our freedom of navigation [FON] operations in disputed waters. I have been pleased to see that some of 
2 

that has occurred, especially in the sensitive period around the 

U.N. Law of the Sea ruling. 

At the same time, however, I think it is clear that more is needed to defend our allies and our interests in the region. Despite the 

ruling, Beijing is still laying claim to almost all of the entire sea. 

Work on China’s artificial features continues apace, with much of 

it clearly military in nature. China’s military and paramilitary 

forces continue to wage a campaign of gray-zone aggression and increase their presence and activity in the region. All in all, the 

trends seem to be toward China’s de facto control of this vital body 

of water. 

With the end of the Obama administration approaching, I believe 

we are entering a time of both vulnerability and opportunity. I am 

concerned that China’s president and the Chinese Government may 

see President Obama’s last few months as a window of opportunity 

for establishing an air defense identification zone [ADIZ], expanding reclamation activities to Scarborough Shoal, accelerating the 

militarization of the artificial features or some move that will test 

our resolve. I think it is critically important that we deter such activities in the months ahead. 

At the same time, I also see an opportunity for a new administration to take a new and stronger stance on the South China Sea, 

and redouble our efforts to maintain peace and stability in the 

Asia-Pacific region. I have my own thoughts on what we must do 

as a nation, but I look forward to hearing from our witnesses how 

we can better deter Chinese aggression, reassure our allies and 

partners, and maintain a stable military balance in the Asia-Pacific 

region going forward. 

When Mr. Courtney gets here, if he has any opening remarks, we 

will defer to him at that particular point in time. But now we 

would like to hear from our witnesses. As Mr. Courtney and I mentioned to you at the outset, your written testimony will be made 

part of the record. We look forward to any comments that you 

might have, and we would love to get your thoughts at some point 

throughout this hearing on just why it is important that we even 

look at the South China Sea for individuals living in States across 

our country who may say, why are we even concerned about it? 

And the second thing, we always know that there are risks if we 

have the wrong actions, but what risks are there if we have no actions as we see in many situations in the South China Sea, if you 

could elaborate on those. 

With that, Ms. Glaser, we would love to have you start us off and 

love to hear any comments that you might have. 

[The prepared statement of Mr. Forbes can be found in the Appendix on page 31.] 

STATEMENT OF BONNIE S. GLASER, SENIOR ADVISER FOR 

ASIA AND DIRECTOR, CHINA POWER PROJECT, CENTER FOR 

STRATEGIC AND INTERNATIONAL STUDIES 

Ms. GLASER. Thank you, Chairman Forbes, Ranking Member 

Courtney, members of the House Subcommittee on Seapower and 

Projection Forces. I appreciate the opportunity to testify before you 

today. 
3 

The United States has a great deal at stake in the South China 

Sea. We have a national interest in freedom of navigation, particularly open access to Asia’s maritime commons. We have an abiding 

interest in the compliance with international law, including the 

July 12 UNCLOS [United Nations Convention on the Law of the 

Sea] tribunal ruling. We certainly have an interest in the peaceful 

resolution of disputes and the lack of coercion by big powers 

against smaller powers. And, of course, we have a very important 

interest in ensuring the security of our allies and our partners. All 

of these interests that I have enumerated I see as under challenge 

today from China. Chinese statements and actions in the South 

China Sea suggest that China seeks to, over time, gain control over 

the waters and the airspace in the South China Sea. After the tribunal issued its ruling, the Chinese Government issued what is a 

very highly authoritative and unusual statement that cited a series 

of claims, including to historic rights in all of the waters, but also 

to internal waters. And a few days after that, the commander of 

the PLA [People’s Liberation Army] Navy, Admiral Wu Shengli, 

told CNO [Chief of Naval Operations] Admiral John Richardson 

that the South China Sea is a Chinese core interest. That indicates 

that Beijing will resist making concessions, and it is a warning to 

the United States to tread carefully. That is the first time that that 

statement has been made very openly and clearly and reported in 

the Chinese media. 

Acquiring greater control over the South China Sea may well be 

a key step in a long-term Chinese strategy to constrain, or even 

block, the U.S. Navy’s access to the region and to maneuverability 

within the waters of the first island chain. If this is Chinese objectives, and we don’t know for sure because Beijing has not made its 

goals clear, this is very worrisome. 

So I agree with you, Congressman Forbes, that there is a potential of China taking advantage of the final months of the Obama 

administration, or maybe even the transition, the upcoming election, and the first few months of a new President. The Chinese are 

known to test the resolve of American Presidents in the early 

months. We have already seen some potential evidence that the 

Chinese may dredge on Scarborough Shoal. A military outpost on 

that feature would enable China to deploy radar, aircraft, cruise 

missiles within range not only of Manila, but also of several Philippine bases to which the United States has recently gained access 

under EDCA [Enhanced Defense Cooperation Agreement]. 

Up until now, we have seen a dynamic where China has been 

careful to avoid directly challenging the United States in the South 

China Sea. It has rather used, you know, incremental actions, what 

could be referred to as a salami slicing, which had not provoked a 

U.S. military response. I think it is uncertain whether China will 

continue this strategy going forward. Xi Jinping could decide to 

proceed with construction at Scarborough Shoal to bolster his domestic political position in advance of the 19th Chinese Communist 

Party National People’s Congress, which will be held in November 

2017. 

So I believe and share your views, Congressman, that the Obama 

administration’s rebalance to Asia has been important. It has 

achieved some success. There is, of course, much more that we can 
4 

do. Steps to bolster U.S. diplomatic engagement and military presence have been welcomed throughout the region, but wherever I go 

in Asia, I hear in every capital, not only our allies, but our partners, that American will and ability to sustain its commitment 

going forward is questioned. The region is highly uncertain about 

what the United States is going to do, in part because of the uncertainty of who will be President, but also because they worry that 

we may be distracted by crises elsewhere. 

So I have enumerated in my testimony a number of things that 

I think the U.S. should do going forward. I will just enumerate a 

couple here, and we can discuss them in greater detail if you wish. 

The U.S. should continue to publicly and privately call on Beijing 

to comply with this tribunal award and encourage countries to do 

the same. We should continue to warn Xi Jinping that land reclamation on Scarborough Shoal, declaration of an air defense identification zone in the South China Sea, or other destabilizing behavior, will be viewed with grave concern and result in a very 

strong U.S. response. 

We should resume our freedom of navigation operations in the 

South China Sea. We should conduct them regularly. Such missions should be carried out, I think in the future, quietly and without fanfare. 

The Maritime Security Initiative is very, very important. We 

need to provide more funding. I would advocate that the full request of $60 million for the Maritime Security Initiative be granted 

and that the members here support the Senate’s State Foreign Operations Appropriations Bill, which has called for increasing the appropriation for the Department of State’s FMF [Foreign Military 

Financing Account] and IMET [International Military Education 

and Training Account] for Asia. 

I support ratification of UNCLOS. I think that it is no longer sufficient that the United States adheres to UNCLOS as customary 

law. If the principles and practices that are embodied in the Convention on Law of the Sea are critical to American interests, then 

the U.S. should ratify the treaty. So I will stop there and look forward to your questions. Thank you. 

[The prepared statement of Ms. Glaser can be found in the Appendix on page 35.] 

Mr. FORBES. Thank you so much. Dr. Kraska. 

STATEMENT OF DR. JAMES KRASKA, S.J.D., PROFESSOR OF 

INTERNATIONAL LAW, OCEANS LAW AND POLICY, STOCKTON CENTER FOR THE STUDY OF INTERNATIONAL LAW, U.S. 

NAVAL WAR COLLEGE 

Dr. KRASKA. Thank you very much, Chairman Forbes and Ranking Member Courtney, and members, for the opportunity, the invitation, to speak about the rule of law in the oceans, which I believe 

are the normative basis for seapower and projection forces globally. 

In the South China Sea, we face strategic risk, a military threat, 

and political challenge, and there is a legal dimension to all of 

these issues, which is a continuous struggle to shape and form the 

rules and the regimes, the laws and the norms, in the global commons. So I would encourage people to view the problems, the issues 

in the South China Sea, as a Chinese dimension of a global issue, 
5 

which is that the rules for navigation and overflight are essential 

for the primacy of American power, and it is really the key enabler 

for U.S. grand strategy. This is why I believe that the issues in the 

South China Sea matter for the United States, and should matter 

for people in the U.S. everywhere. 

It is because the United States is connected to its friends and allies and partners throughout the world through the oceans and the 

airspace, and so the rules that apply to the maritime zones are critical for the U.S. position in the world. In fact, it has always been 

this way. The first war that the United States fought as an independent country was the Quasi-War with France in 1798 to 1800. 

It was over the issue of freedom of navigation and unimpeded access to the global commons. The second war that the United States 

fought was the First Barbary War. It was also over freedom of 

navigation. The third war that the United States fought as an independent country was the War of 1812 over, again, freedom of navigation and the impressment of American sailors from U.S. ships. 

The fourth war that we fought was the Second Barbary War when 

we put a stop to the odious practice of slave trafficking off the 

North African Coast. 

And it goes on and on. Of course, in World War I and World War 

II, these wars were principally about whether a hegemonic power 

would emerge in Europe or in Asia, and the maritime space was 

the lifeline for the United States to be able to maintain connectivity and prevent the emergence of a hegemonic power. 

So I view the South China Sea today as the fulcrum, not just of 

power in East Asia, but really a fulcrum of freedom of navigation 

throughout the globe. So there is no national security issue in my 

view that is more important. 

I have provided written testimony that contains a number of recommendations on strengthening the U.S. resolve in freedom of 

navigation and overflight throughout the global commons, and, in 

particular, in the South China Sea, and what I describe are four 

lines of efforts. The first is that there is already a governing U.S. 

policy on freedom of navigation in the oceans. It is a 1983 Ocean 

Policy Statement by President Reagan, which was made on March 

10 of that year, which says that the United States does accept all 

of the navigational principles that are included in the U.N. Convention on the Law of the Sea, and that we will recognize that all 

countries have those rights. But there is a part of that that has 

been forgotten, which is that the Reagan statement says we will 

recognize other countries’ rights so long as they respect American 

rights and American freedoms that are reflected in that convention. 

My view is that the United States should be more true to that 

policy and when appropriate, implement countermeasures, lawful 

countermeasures, against countries such as China to induce compliance with international law, meaning that I would recommend 

not recognizing Chinese rights to operate in the American territorial sea or in the U.S. exclusive economic zone with military warships and aircraft if China tries to deny that right to the United 

States. The U.S. should inform Chinese warships and military aircraft that they are no longer entitled to conduct innocent passage 

in the U.S. territorial sea, as they did through the Aleutian Islands 

last year, or conduct military activities in the United States exclu-
6 

sive economic zone, as they now routinely do off the coasts of Hawaii and Guam, and inform them that this is not a reciprocal or 

a tit-for-tat, but, rather, that this is a lawful countermeasure in 

international law. 

I would also bolster the FON program, and a couple of the things 

that I would recommend is to conduct combined FON operations 

with other countries, such as Japan, because freedom of navigation 

is not just a American issue; it is a global, it is a multilateral issue, 

and all countries that are peace-loving and trade freely have an interest in freedom of navigation in the global commons. 

I would also prioritize for the FON program the many, many illegal claims that have never been challenged, to my knowledge, such 

as the straight baselines that cut off the Hainan Straits, which 

China purports to view as internal waters, and that challenge has 

never been conducted, as far as I know, or at least most likely since 

the Vietnam war. 

The third thing is I would leverage the arbitration award, the 

July 12 arbitration under the U.N. Convention on the Law of the 

Sea, and in particular, that 500-page award delineates a number 

of illegal actions by China that ought to be considered by multilateral organizations that are in charge of those issue areas. For example, there are numerous violations by China of the Collision 

Regulations [COLREGS], which is under the auspices of the International Maritime Organization. There is also violations by China 

of the International Civil Aviation Organization rules that flow 

from the 1944 Chicago Convention on Civil Aviation. 

Similarly, there is misuse of fishing vessels as a maritime militia, which ought to be discussed before the Food and Agricultural 

Organization of the United Nations. So there are multilateral efforts that we have not taken advantage of that we could. 

And the fourth thing, I would join my colleague, Bonnie Glaser, 

and say that I believe that the United States should join the U.N. 

Convention on the Law of the Sea because ultimately, of course, 

the United States relies on its Armed Forces, including its naval 

forces especially, to ensure that it has freedom of navigation in the 

global commons. But I believe that we operate stronger under the 

color of law, and with greater legal and moral authority and clarity 

if we were to join the Convention. In particular, although I understand and accept that the Convention reflects customary international law and is binding on all states, nonetheless, it resonates 

with our friends and allies and partners around the world. That is, 

they very much are interested in us doing so, and in my view, as 

a champion of the rule of law, in international law, this affords the 

United States a unique locus of power, which we have not yet leveraged. 

I don’t expect that China will suddenly begin to comply with the 

Law of the Sea Convention if the United States becomes a party 

to it, and I would view that as not the end of the process, but, rather, just a continuation of the struggle to shape the law in the 

oceans, and in particular, in the South China Sea. Thank you. 

[The prepared statement of Dr. Kraska can be found in the Appendix on page 46.] 

Mr. FORBES. Thank you. Dr. Erickson. 
7 

STATEMENT OF DR. ANDREW S. ERICKSON, PH.D., PROFESSOR 

OF STRATEGY, CHINA MARITIME STUDIES INSTITUTE, U.S. 

NAVAL WAR COLLEGE 

Dr. ERICKSON. Chairman Forbes, Ranking Member Courtney, 

members. In the South China Sea, Beijing is employing not one, 

but three major sea forces, fleets of navy gray hulls, coast guard 

white hulls, and maritime militia blue hulls. Today, I want to tell 

you why so much is at risk if more isn’t done to address China’s 

maritime militia, China’s third sea force. So much is knowable 

about this third sea force through open sources alone. I have got 

a stack of my publications on the subject here of my colleague 

Conor Kennedy, at the Naval War College. So much is sayable if 

only U.S. Government officials would do so. And so much is preventable, but only if U.S. officials act soon. 

These forces operate together, with blue hulls forward and white 

and gray hulls backstopping them. These are gray-zone operations 

conducted to alter the status quo in China’s favor regarding disputed claims, employing coercion as necessary, but ideally without 

escalating to war. 

Nevertheless, leading elements of China’s third sea force have already played frontline roles in manifold Chinese incidents and skirmishes with foreign maritime forces throughout the South China 

Sea. These include China’s 1974 seizure of the Western Paracels 

from Vietnam; its 2009 harassment of U.S. Navy surveillance ship 

USNS Impeccable; its 2011 sabotage of two Vietnamese hydrographic vessels; its 2012 seizure of Scarborough Shoal from the 

Philippines; and its 2014 repulsion of Vietnamese vessels from disputed waters surrounding its oil rig, including by ramming and 

sinking them. 

In recent years, China has used its maritime militia against military and civilian ships and crews of its immediate neighbors, as 

well as the U.S., with no direct public response from any of them. 

So there is an important reason for their current lack of light and 

attention on China’s third sea force. Despite a deluge of Chinese 

language evidence of its development and activities, no U.S. Government report, to my knowledge, or Washington-based executive 

branch official, has publicly mentioned China’s maritime militia at 

all. As a result, I would submit to you, U.S. policy is underinformed. U.S. regional allies and partners are confused, and Beijing is emboldened. But make no mistake. These are state-organized, -developed, and -controlled forces operating under a direct 

military chain of command. 

Now, China is generating a worrying new wave of the future in 

leading-edge maritime militia development. Headquartered on 

Woody Island in the Paracels, the Sansha militia was established 

to be a professional paramilitary force, first and foremost, with 

fishing a secondary mission at best. Several dozen large new 

Sansha maritime militia vessels boast reinforced hulls, external 

rails to mitigate collision damage to the ships themselves, and 

water cannons, features not common to normal fishing trawlers, 

but highly useful for ramming and for spraying. 

Now, as Beijing seeks to punish the Philippines for petitioning 

the arbitral tribunal that Professor Kraska has mentioned, dissuade Vietnam and others from following suit, and demonstrating 
8 

its longstanding opposition to U.S. freedom of navigation efforts, 

China’s third sea force likely appears a tempting tool. 

The next President, or even the current President, but especially 

the next President, given past patterns, may well face a fast-breaking maritime militia-related challenge, just as he or she is getting 

started in office. This is because, as Bonnie Glaser pointed out, 

Chinese leaders have a history of testing their American counterparts shortly after they assume office. And we see some worrying 

signs here. On 27 October of last year, when USS Lassen sailed 

near artificially augmented Subi Reef, small commercial craft with 

the hallmarks of maritime militia vessels approached it provocatively, having apparently anticipated its presence. Who knows 

what contingencies they might have been practicing for or what 

footage they might have been capturing for later misuse. 

So before China is able to put the United States or one of our 

regional allies or partners in a misleading but precarious position 

of appearing to confront innocent civilian fishermen, American officials must finally publicly reveal the third sea force’s true nature 

and deeds. China’s maritime militia can only be as deceptive and 

plausibly deniable as we allow it to be through our own silence and 

our own inaction. 

So here is what I think American policy makers need to do now. 

First of all, emphasize three principles. One, China’s maritime militia is a military force, often in disguise. Number two, China’s 

maritime militia forces don’t deserve civilian protections in the unfortunate event of conflict. And number three, uncovering the truth 

about China’s maritime militia is the best way to deter it and to 

deter its use in the first place. 

I also think we need to engage in three actions. One, call out 

China’s maritime militia officially in public. Failure of the Pentagon’s 2016 report to mention China’s maritime militia at all was 

a major missed opportunity. Congress should mandate detailed coverage in next year’s report. And meanwhile, Congress should publicly address this critical subject and ask senior administration officials to do so as well. Two, share information with countries at 

risk. Provide American leadership and strategic reassurance. And 

as part of this, to bring all this action together, I believe that the 

next U.S. President needs to issue a public, whole-of-government 

Asia-Pacific strategy to coordinate policy, reassure allies and 

friends, and deter destabilizing behavior. Three, communicate 

clearly with Chinese interlocutors. Make it plain that any elements 

that ignore repeated warnings by U.S. vessels to desist from disruptive activities will be treated as military controlled, and dealt 

with accordingly. To ensure self-defense and unobstructed mission 

accomplishment, we need to impose clear consequences for any use 

of maritime militia against U.S. vessels. 

In sum, the U.S. faces growing challenges in the South China 

Sea. In many ways, China’s maritime militia is one of the simplest 

to begin to address. Its plausible deniability is one of its greatest 

strengths, and yet it has many vulnerabilities. We can quickly 

unmask it by putting a clear U.S. Government stamp of authority 

on already available information. It is high time that we did so before things take a turn for the worse in a time and a way that is 

not of our choosing. 
9 

Thank you very much, and I am happy to address any questions 

that you might have. 

[The prepared statement of Dr. Erickson can be found in the Appendix on page 74.] 

Mr. FORBES. Thank you, Dr. Erickson. The Chair now recognizes 

the ranking member, Mr. Courtney, for any opening remarks he 

may have. 

STATEMENT OF HON. JOE COURTNEY, A REPRESENTATIVE 

FROM CONNECTICUT, RANKING MEMBER, SUBCOMMITTEE 

ON SEAPOWER AND PROJECTION FORCES 

Mr. COURTNEY. Thank you, Mr. Chairman, and I apologize for 

not being here at the outset. Actually, I have written remarks 

which to keep the hearing moving along, I am just going to ask 

that they be admitted to the record. 

Mr. FORBES. Without objection, all the written remarks for all of 

the members will be made a part of the record. 

[The prepared statement of Mr. Courtney can be found in the Appendix on page 33.] 

Mr. COURTNEY. And, again, also to supplement those, some of us 

may recall—probably most of us don’t—but when we did the markup last May, or at the end of April, one of the report requests that 

HASC [House Armed Services Committee] included in the markup 

was, in fact, a report from the Department of Defense regarding 

U.S. accession to the Law of the Sea Convention. And the request 

had a deadline of September 15, and believe it or not, they actually 

submitted the report on time. And so Navy Commander Jason 

Levy, of the Oceans Policy Adviser, Office of the Secretary of Defense, submitted his report. It is a 6-page report. Very powerful argument. Again, totally in sync with the three witnesses that the 

advantages far outweigh the status quo in terms of the U.S., again, 

becoming a full signatory. And, again, I would ask that it be made 

part of the record. 

Mr. FORBES. Without objection, it will be made part of the 

records. 

[The information referred to was not available at the time of 

printing.] 

Mr. COURTNEY. I would yield back to questions. 

Mr. FORBES. Well, once again, thank you all for your comments 

and your thoughts. Dr. Kraska, I would like to ask you, U.S. naval 

policy to date has been the infrequent application of innocent passage to seek and challenge unlawful maritime claims in the South 

China Sea. In the South China Seas, have any of the claimants formally established a territorial sea that would provide a 12-nautical 

mile baseline? 

Dr. KRASKA. Thank you very much for the question. Sir, in answer to the question, my view is that in Article 3 of the U.N. Convention on the Law of the Sea, it says that states may establish 

baselines from which a territorial sea is measured, and, therefore, 

there are no territorial seas unless those baselines are established. 

They have not been established in the Spratly Islands. There are 

illegal straight baselines that China has purported to establish 

around the Paracel Islands. So, my view would be that there are 

no lawful territorial seas around any of those islands. 
10 

Furthermore, I would say that there is no resolution on title to 

those features. And that is the features may be entitled to a territorial sea and baselines assuming that they are under the sovereignty of a state, but if they are not under the sovereignty of the 

state, then it is impossible for there to be any sort of baseline or 

territorial sea. For example, if a country claims to have a territorial 

sea around Antarctica, the United States would not recognize a putative or theoretical territorial sea there, so why would we then 

recognize a putative territorial sea around a rock just because some 

other country claims that they happen to own it? 

Mr. FORBES. Do you have any opinion as to why the U.S. policy 

has been to apply our military forces in the pursuit of innocent passage and not a more rigorous military application that would serve 

to rebuke any unlawful claimant’s claims? 

Dr. KRASKA. I am not—I don’t have a view on what the considerations were within the U.S. Government. I just think that it is the 

wrong decision, that is, that I would not have selected innocent 

passage, which is the most restrictive navigational regime in the 

Law of the Sea in order to challenge unlawful claims. In particular, 

we have done so around some features which are, even if they are, 

they are not subject to appropriation by any state, for example, 

submerged features or low-tide elevations, which can never, even 

if they were claimed by a state, they could never generate a territorial sea, so it would not make any sense to observe a territorial 

sea around a feature such as that. 

And the arbitration tribunal brought some clarity to the Spratly 

Islands by identifying a number of features, including several features that China has turned into artificial islands that could never 

be considered to have a territorial sea, in particular, Mischief Reef, 

for example. So I would recommend that Mischief Reef be overflown by aircraft. There is no national airspace above it, no matter 

which country tries to claim it, and there is no territorial sea 

around it. High seas freedoms and full overflight rights apply on 

those features. 

Mr. FORBES. Ms. Glaser, the Center for Strategic and International Studies has found that Chinese maritime law enforcement 

ships were involved in over 70 percent of the major incidents in the 

South China Sea since 2010, including aggressive harassment, 

ramming of foreign coast guard ships and fishing boats. What steps 

do you believe the U.S., our partners and allies, should take to dissuade China’s use of maritime law enforcement ships in an aggressive manner contrary to international norms that further China’s 

unlawful claims? 

Ms. GLASER. Congressman, this issue that you raise is really 

quite worrisome. I think it doesn’t get enough attention. China is 

now building exceedingly large white-hulled ships. Some of them 

used to be navy ships. They are painted white. They have larger 

numbers than others. They use these ships, vessels, to harass 

neighbors, whether it is through water cannons or rammings. 

When the Chinese had positioned a large oil rig off of Vietnam’s 

coast in 2014, the activity between both sides’ coast guards was 

really quite worrisome. I believe, although our data is from public 

sources, and, yes, we have found that in 70 percent of the instances, China is involved. 
11 

Nevertheless, if you were to talk to fishermen in the region, particularly those Filipinos who make their living from fishing around 

Scarborough Shoal and have been unable to fish there since 2012, 

those who have tried to go back have been harassed and have put 

their own lives at risk, and many of them are waiting for the implementation of the ruling which has found that the Philippines 

has traditional historic fishing rights in those waters. 

So I think that the United States needs to—first, we are already 

negotiating in our Coast Guard with the Chinese some procedures 

that really draw from the COLREGS as to what is legal and illegal 

in terms of interactions when coast guard ships, white-hulled ships, 

encounter each other at sea, but this is less important between the 

United States and China than it is between China and the coast 

guards that are immediately, of course, in the South China Sea, as 

the U.S., of course, operates many Navy ships, but our Coast 

Guard is really not very active and present in the South China Sea. 

So I believe it is imperative that we strongly encourage this kind 

of agreement between ASEAN [Association of Southeast Asian Nations] and China that is ultimately drawing from what is already 

existing in the COLREGS, because China is violating these laws on 

a daily basis. Thank you. 

Mr. FORBES. And, Dr. Erickson, in addition to the use of their 

navy and maritime law enforcement vessels, the Chinese appear to 

increasingly rely on their robust fishing fleet as a third sea force, 

and you mentioned that in your comments. It appears that the 

United States has limited recourse when these vessels are employed. Do we have a strategy for countering this kind of gray-zone 

aggression, and do we need one, and what steps should the U.S. 

be taking to deter or defeat this kind of activity? 

Dr. ERICKSON. Well, Congressman Forbes, I applaud your attention to this important but under-considered issue. Clearly how to 

address American interests and regional stability in the South 

China Sea is a challenging problem, but as a start, we have to understand it fully in order to formulate the right policy. And heretofore, not publicly focusing on one of the three major sea forces is 

an issue. As you correctly point out, China has the world’s largest 

fishing fleet, and a small elite within that fishing fleet is brought 

into the maritime militia. A small elite within that maritime militia is charged and entrusted with participation in international sea 

incidents, including harassment of our vessels. 

So I think we need to start by calling them out on this, make 

it clear that we are wise to Beijing’s game. I think we need to find 

some way to communicate to China that we will not be stymied by 

harassment from these vessels. I am not a maritime lawyer, and 

I am not going to play one in a hearing or on TV, but for me, the 

bottom line is clear: We need to be in the solutions business regarding U.S. policy, and there is no way we should allow even the 

possibility in a future U.S. freedom of navigation operation, one of 

our mighty destroyers to become a Gulliver surrounded by Lilliputs 

by comparison of Chinese maritime militia forces. There has to be 

some way that we can avoid being Gulliverized in this fashion, and 

I think we need to find it soon and communicate that clearly. 

Mr. FORBES. My last question, and this isn’t a surprise to you. 

Mr. Courtney and I talked to you about this. But we have members 
12 

from all across the country in here. Some from Indiana, Missouri, 

Texas, not exactly surrounded by oceans in their districts. 

Why is the South China Sea important to any of those individuals? When we hear of middle America and we go talk, you know, 

to those individuals, why do they care about this and why should 

they care about this whole issue? 

Ms. Glaser, we can start with you, but each of you, give me your 

best 60-second shot to explain that to them. 

Ms. GLASER. Well, Congressman, I have already addressed this 

to some extent in my remarks. But I do think that the issue is really about having a rules-based order; that if there are no international rules that everybody agrees to and abides by, then you 

have chaos and anarchy in a region where we have enormous interest. So this is a major strategic waterway. Everybody quotes the 

figure of $5.3 trillion in trade that passes through those waters. I 

am actually trying to update that figure. It is from 2011, so I am 

gathering data. 

There is the issue of a potential internal sea that the Chinese 

could declare there that ultimately would oust countries that occupy those features, so that countries in the region that feel United 

States is an unreliable partner, and they then have to accommodate to China, and they lose their autonomy. I think that that is 

a world in which the United States would suffer, because this 

would have implications for other interests, economic realm, in the 

trade area. For example, the Chinese would be greatly emboldened 

if they achieve the goal of gaining effective control over the waters 

and the airspace of the South China Sea. 

Mr. FORBES. Dr. Kraska. 

Dr. KRASKA. Thank you, Mr. Chairman. The oceans and the airspace above them provide the connection between the United 

States and our friends and allies throughout the world, and so the 

ability to operate freely in this global domain is the cornerstone of 

American power and American position in the world. It has been 

so for at least 100 years, and our connection with other countries 

is important to inoculate those countries from would-be hegemonic 

powers, such as China in East Asia or Russia in Europe, that 

might come to dominate those areas. And the only way that those 

countries can stand is with a connection—stand independently, is 

with a connection to the United States. 

The United States has gone to war numerous times to vindicate 

its right of freedom of navigation because we understand that we 

are essentially a hemispheric island nation, and we care very much 

about whether Europe or Asia is dominated by an emerging challenger. 

I would end with saying that the Vietnam war, for example, one 

of the major instigations was the Gulf of Tonkin incident, and a 

challenge to U.S. ability and rights and freedoms to operate in the 

global oceans. So the South China Sea is a dangerous flashpoint, 

one of the most dangerous in the world, and the United States has 

to be steadfast in order to maintain its rights and freedoms in this 

area because there is one rule set that applies throughout 70 percent of the planet. And if there is a different set of rules that are 

going on in the Persian Gulf or in South China Sea, then it puts 

at risk freedom of navigation anywhere else in the world. 
13 

Mr. FORBES. Dr. Erickson. 

Dr. ERICKSON. You have all called us here today because you 

have been entrusted with representing the jobs and the values of 

the people in your district. And where that all comes together is 

in an open and rules-based international system underwritten, in 

part, by American seapower. It doesn’t just sustain itself. Now a 

critical part of that international system, a critical part of the global commons is being challenged in a new way because China is trying to carve out the South China Sea as a zone of exceptionalism 

where those open and free and productive and prosperous rules 

and norms don’t fully apply, where they are subordinated to Beijing’s political priorities. 

If we allow that to happen, it is not just going to have an impact 

on our friends and allies in the immediate region. It is going to reverberate across the world in terms of economic growth and trade 

and factors that will ultimately make it back to everybody’s district. So I think we have a strong shared interest in upholding that 

freedom and that openness in the South China Sea. 

Mr. FORBES. Thank you. Mr. Courtney is recognized for any 

questions he may have. 

Mr. COURTNEY. Thank you, Mr. Chairman. And thank the witnesses for your testimony and all your hard work over the years 

on this issue which, obviously, with recent events, is something 

that really more Members need to listen to and focus on. I just 

want to, again, follow up on some of the testimony regarding the 

whole process that the tribunal just went through in terms of 

reaching its decision. 

And Ms. Glaser, again, just can I ask a couple quick questions. 

Because of the fact that we never became a full signatory, the U.S. 

actually was shut out in terms of being a party or any kind of participant in that process. Is that correct? 

Ms. GLASER. Yes, it is. The United States, I believe, was barred 

from sending an observer to the proceedings because it is not a signatory to UNCLOS. 

Mr. COURTNEY. So even though we obviously have a national interest, which all of the witnesses have talked about in that part of 

the world—we are a Pacific nation—the fact of the matter is is that 

we, again, couldn’t file a complaint. We could not appear even as 

an observer and, really, we just had to kind of rely on the kindness 

of strangers in terms of advancing our interests. Is that correct? 

Ms. GLASER. Yes. My understanding is that we did get back 

briefs from our allies. I think the Australians did send an observer, 

of course, several other nations, but there is no substitute for having the United States and its own person having somebody present 

in the room. So we do not—we are unable to avail ourselves of really all of the benefits of UNCLOS, but we do really have to share 

the burden of undertaking the obligations. 

Mr. COURTNEY. Correct. So, again, in your testimony and the 

other witnesses’ testimony in terms of the follow-on to the tribunal’s decision, I mean, inevitably, the question of a remedy or 

enforcement in terms of, again, protecting the tribunal’s decision, 

which the U.S. agrees with, is going to inevitably require U.S. 

Navy assets, you know, interaction with our allies in that region. 

I mean, it has an impact in terms of, you know, the work of this 
14 

committee, in terms of, you know, the Navy’s resources and policies. 

Ms. GLASER. Yes. I agree. I think there has long been concerns 

and some of them, perhaps, very legitimate about the price or costs 

that the U.S. would have to bear if we ratify UNCLOS. But as time 

has gone on, as I have observed, the maritime issues and challenges that we face around the world in the areas that I focus on 

really are East China Sea and South China Sea. We are just paying an enormous price in terms of American credibility, moral authority, and our ability to act in the region effectively. So we are 

constantly criticized not only by China, but by our friends in the 

region for not taking that step when, in fact, we were deeply involved, of course, in the negotiations which produced the treaty. 

Mr. COURTNEY. And so looking at your suggestions about what 

should the U.S. do going forward, I mean, persist in calling for 

compliance with the ruling, warn China against taking actions contrary to the ruling. I mean, the fact is is that we are in a somewhat 

conflicted position about pointing to a ruling that, again, we are 

not a full-bodied participant in terms of that process. And as you 

say, it just sort of undercuts, certainly, the moral standing of defending the rule of law, and kind of demoralizes our friends in that 

part of the world in terms of our ability to assert it. 

Ms. GLASER. I hear this from our allies, our friends in the region 

quite frequently when I travel to the region, when diplomats from 

those countries visit Washington, DC, they do not understand why 

the United States has left itself open to such criticism, particularly 

by the Chinese who say, Well, the United States hasn’t ratified and 

become a signatory, so why should we even listen to U.S. objections 

about Chinese behavior and so-called, what they would say socalled lack of compliance with the arbitral tribunal. 

So this is a huge challenge for the United States to deal with 

going forward. I think that it is long overdue for the United States 

to become a signatory to the Convention. 

Mr. COURTNEY. Thank you. And Mr. Kraska, you mentioned 

President Reagan’s statement of principles back in 1983. Again, included in that whole sort of series of decisions or announcements 

was also sort of the problems that existed at that time in terms of 

objections to the language of the treaty as it was crafted at that 

point. Can you just kind of fast forward us a little bit in terms of 

whether or not President Reagan’s concerns still stand unchanged, 

or whether or not there actually has been some intervening events? 

Dr. KRASKA. Thank you, Congressman, for the question. So the 

ocean policy statement did object to one provision, one part, actually, to be more accurate, of the U.N. Convention on the Law of the 

Sea which was part 11 on seabed mining. And the Reagan statement says that the other portions of the Convention reflect customary international law and the norms in the United States 

would comply and expected, actually, other countries to comply as 

well. 

Part 11 underwent a transformation between 1982 when the 

Convention was adopted by the U.N. Third Conference and 1994, 

mostly through the efforts of the United States, as well as some 

other countries, because the United States was not the only industrialized country that declined to sign the Convention. And the 
15 

major intervening event was, of course, the fall of the Berlin Wall 

and the, sort of, lack of respect for socialist models. 

And part 11, the original part 11 was based on a socialist sort 

of redistribution of wealth type of model, and after the Berlin Wall 

came down and it became apparent that no industrialized countries 

were going to sign the treaty, it was revised through an amendment, an implementing agreement for part 11. The implementing 

agreement has a number of—it reflects a number of positive developments. The first is that the United States is guaranteed a position on the Council for the International Seabed Authority. And the 

Seabed Authority is the authority that grants seabed licenses for 

areas beyond national jurisdiction. The United States has a guaranteed seat on that Council, and that Council is run through consensus, which means the United States has an effective veto over 

the decisions of the Council as well the distribution of funds. 

One of the Reagan objections was that the International Seabed 

Authority could take the royalties from seabed mining and transfer 

those to countries for development as well as national liberation 

movements. And the national liberation movements was taken out 

and the United States, again, placed with a permanent seat on the 

Council. Those were the major features. There are some other tertiary benefits, such as marine technology, in the first or original 

version, was going to be transferred through mandatory means. In 

the revised version, marine technology is to be transferred on a 

market basis. And so part 11 underwent an entire transformation 

to sort of update and modernize it from a 1970s socialist construct 

to a 1990s capitalist economic and more liberal construct. 

Mr. COURTNEY. Great. Thank you. And I think that is really important to flesh out that record because, again, we still sort of hear 

the same objections that really, I think, have become outdated because of the modifications that took place, and, obviously, the 

events of the last year or so show that this is no longer an academic debate over UNCLOS. I mean, we really need to get off the 

bench and get into the arena in terms of having an impact on critical decisions. 

Again, House Resolution 631 is out there for Members if they 

wanted to sign on calling on the Senate to move forward. And with 

that, I yield back. 

Mr. FORBES. Chairman Wittman is recognized for 5 minutes. 

Mr. WITTMAN. Thank you, Mr. Chairman. I would like to thank 

our witnesses for joining us today. I wanted to get each one of your 

perspectives on where we are now in the Chinese effort of using essentially incrementalism to move the international norm. They continue to profess that things aren’t happening. They don’t intend to 

militarize the area. We saw in September 2015, President Xi Jinping stated that they had no intention to militarize the Spratlys, 

yet, having visited there, and seen a hardening of those islands, 

airstrips being built, antiaircraft batteries being put in, clearly an 

effort to militarize those areas. 

It is concerning to me that we see this effort to delay negotiations. You know, don’t negotiate, don’t negotiate. Talk about, let’s 

continue to push things down the road, while at the same time, 

moving the norm. And then the United States is put in the position 

to either have to take aggressive action to try and stop that, or we 
16 

find ourselves in a new, less acceptable international norm. And 

let’s face it, we get to a certain point and then that is going to become the reality. 

The question I have is, are the current U.S. freedom of navigation operations [FONOPs] and the effort to enforce the U.N. Convention of Law of the Seas ruling, is that enough by itself to reassure our allies? And should we be doing more to pull our allies in 

to be part of this freedom of navigation operation so that there is 

more than just a U.S.-China scenario here, where other nations or 

folks in the region say, listen, this is Japan that is part of this, this 

is Australia that is part of this, pursuing these FONOPs in the 

area. Because short of that, if this continues, it will get to a point 

where China says, listen, we know the United States is not going 

to take action to try to reverse any of this. And we even hear that 

from our naval leaders in the area. So I would love to get your perspective about China pushing this effort of incrementalism, creating, essentially, these unilateral actions that create a new norm 

and really kind of daring us to do anything other than the current 

freedom of navigation operations and try to change the status quo. 

Ms. GLASER. Thank you very much, Congressman. You refer to 

Chinese President Xi Jinping’s statement, which he made in the 

Rose Garden, that China doesn’t have the intention to militarize 

the Spratlys. I believe that Xi Jinping probably had a very different 

definition in mind of militarization. I think the Obama administration tried to hold his feet to the fire, but, clearly, militarization continues. And we have seen recent satellite imagery made public by 

our Asia Maritime Transparency Initiative at CSIS which has 

shown that there are hardened shelters on at least three of these 

islands capable of accommodating about 24 fighters; what looks 

like that they are building is emplacements for surface-to-air missiles. They could be putting in cruise missiles in the future. So, it 

is hard to state any more clearly that militarization is underway. 

The United States, I think, must stop any further land reclamation. This is essential. 

There were some signs that the Chinese may have been moving 

earlier this year to start dredging at Scarborough Shoal. If they 

were, perhaps the United States did deter them. It is critically important that our President has told Xi Jinping personally, ‘‘Do not 

go forward and do that, or there is going to be a U.S. response.’’ 

We have to be able to be willing, not just able but willing, to put 

the United States on the line here and incur some risk. And if we 

are willing to incur some risk, then I think the Chinese will take 

us more seriously. 

One of the problems in this regard is that, because the United 

States has prioritized cooperation with China on a vast number of 

issues, some of which are very important—climate change, the 

agreement with Iran to prevent Iran from going nuclear—there has 

been, I think, a belief in the administration that we can’t have 

those and at the same time put pressure on China to stop taking 

destabilizing actions in the South China Sea. But I think we can 

do both. And we have to be willing to very clearly tell the Chinese 

that their behavior is unacceptable. 

I would agree with you, I guess with a bit of a caveat, on the 

question of whether we should be conducting FONOPs with allies, 
17 

because I would distinguish between Japan and Australia. And, ultimately, this is a sovereign decision for our allies to make. 

I think that Australia is very like-minded with the United States 

on this issue. If they were to conduct their own patrols, I would be 

quite supportive of that. Maybe they would be willing to do that 

jointly with us; I personally don’t think it is necessary. 

Japan is a bit of a different case. As I am sure you know, the 

Chinese are putting a great deal of pressure on Japan in the East 

China Sea. And the day that they sail a navy ship inside 12 nautical miles of a Chinese-occupied territory in the Spratly, I worry 

that the Chinese are going to sail a navy ship inside the 12 nautical miles around the Senkaku [Islands]. And that would be a very 

big price, I think, for Japan to pay. 

Having said that, there is a lot that the Japanese can and are 

doing in the South China Sea. 

Mr. WITTMAN. Thank you, Mr. Chairman. I yield back. 

Mr. FORBES. Mr. Larsen is recognized for 5 minutes. 

Mr. LARSEN. Thank you, Mr. Chairman. 

Dr. Erickson, good to see you again. 

For those who have not traveled to China with Andrew, where 

he speaks fluent Chinese, and you are hanging around talking to 

officers in the PLA, it is very valuable to have Dr. Erickson in the 

room with you. So I will note that. 

And my first question is for you, Dr. Erickson. I think you are 

the one who mentioned whole of government. I am sure all of you 

have some concept of what that might mean. But how would you 

define or redefine a whole-of-government approach on this, with regards to this particular issue? 

Dr. ERICKSON. Well, Congressman, it is great to see you again. 

And it was a great pleasure to be with you in China. And I knew 

we could always find Starbucks coffee in the morning with you 

there. That was part of your trademark. And I think it is wellrecognized in your home district. 

Mr. LARSEN. For a while, it used to be part of Starbucks’ trademark until it went to China. 

Dr. ERICKSON. Excellent. 

So I think there is a lot that needs to be done in implementation. 

This is an evolving effort, but the starting point is very simple. The 

next U.S. administration needs to issue a comprehensive strategy. 

It is extremely viable; it is extremely doable. 

I think it could be drafted in a fairly short period of time. There 

are numerous documents to draw on. The last two U.S. maritime 

strategies have had a lot of positive and robust language about the 

importance to the U.S. of maintaining the global system. We do not 

seek enemies and monsters to destroy, but, nevertheless, we are 

committed to the support and maintenance of that system. If another state decides to try to disrupt that, let’s say in the South 

China Sea, in our effort to secure that system, we would then need 

to push back and handle that issue as necessary. Lots of great language right there. 

In the Clinton administration in the 1990s, the Pentagon issued 

a series of regional policy statements. That offered a good series of 

examples. And during this current administration, there have been 

a smattering of documents, from a White House statement regard-
18 

ing the rebalance—which I agree with everything that has been 

said; that is a good overall initiative—to a brief State Department 

glossy. 

The point is this needs to be taken all together, under the stamp 

of a President, the next President, and this will lay a powerful 

basis for further action. 

In the absence of that, I have heard from many interlocutors in 

allied countries. There is confusion as to what the real policy is. 

There is uncertainty as to what the rebalance means in practice. 

And there has been frustration when people have been directed to 

read a bunch of different documents and various media statements 

by different spokespeople that we all know, in this busy town, no 

one who is doing an active leadership job has the time to sit down 

and put all together. 

So there is a lot that needs to be done, but I think there is a very 

good and positive place to start. And I am optimistic that the next 

President will see move to do just that. 

Mr. LARSEN. Thanks. 

And I think it does—this is not a question, but it does beg the 

question of, with all these statements, with all these policy statements already made and these other actions being taken, why 

hasn’t there been the momentum to keep a consistent or a comprehensive strategy going? And that is, I think, a legitimate question. I am not asking folks to answer that right now. 

Dr. Kraska, can you expand a little bit on the point about a comprehensive strategy, but specifically with regards to use of multilateral venues to essentially enforce UNCLOS even though we are not 

signatory—or we have not enforced it, we are not enforced to it. I 

think it is an interesting idea you mentioned in your testimony. I 

would like to hear a little more about it. 

Dr. KRASKA. Thank you very much for the question. 

I would suggest it wouldn’t be an enforcement mechanism, but, 

rather, there are multilateral institutions that are stakeholders in 

the Law of the Sea as well as other international instruments or 

conventions, such as the Collision Regulations or the Chicago Convention on Civil Aviation, and these institutions have not been utilized by the United States or adequately by other countries. 

The United States, for example, to my knowledge, has not partnered with Vietnam when Vietnam complained that Chinese aircraft are not complying with ICAO air traffic control regulations 

over the South China Sea. The United States should use the venue 

of the International Civil Aviation Organization and join Vietnam 

in the effort to do that. 

The same with the International Maritime Organization. The 

United States is a member. It doesn’t actually require us to be a 

member of the U.N. Convention on the Law of the Sea, but both 

the United States and China and numerous other countries are 

members of the international convention on the Collision Regulations. And so that is a binding treaty commitment that has been 

violated, that the arbitration found was violated by Chinese vessels. 

China also has flag state responsibilities, not just for its government ships such as coast guard vessels but to maintain certain 
19 

standards for its fishing vessels, including the vast maritime militia that Professor Erickson described. 

So I think that there are a number of venues that we haven’t 

fully utilized that could be brought to bear, including, ultimately, 

the U.N. Security Council. Sure, China has a veto in the Security 

Council, but, nonetheless, the Security Council is the primary 

organ for international peace and security. And I think we are all 

here deeply concerned about the threats to international peace and 

security in the South China Sea, and so there ought to be some 

way to use that institution as well, if nothing else, just to make a 

statement. It will project to other countries, as well as to China, 

the seriousness with which we take what is going on in the area. 

Mr. FORBES. Mr. Russell is recognized for 5 minutes. 

Mr. RUSSELL. Thank you, Mr. Chairman. 

There is no doubt that, with a third of the world’s commerce 

flowing through this body of water, it has everybody’s interest. You 

know, I have even proposed, if China’s statements are truly about 

rescue operations, aid and navigation, aid and communication, then 

let’s take them at their word and assist, like Antarctica. I mean, 

we have international use there, right? For studies, for scientists, 

everything else. And if it is truly a third of the world’s commerce 

that is flowing through the South China Sea, then, well, why don’t 

we all roll up our sleeves and go out there and we will put our 

Coast Guard helicopters and our everything else? I mean, we are 

all in it together. 

I think there is a diplomatic path for that, by the way. But that 

ought to be our first and chief aim, rather than putting ourselves 

on a bumper car—you know, rather than lanes of competition, economically, we are putting ourselves on the smash-up derby over 

pieces of coral. Imagine what would happen in the world if the 

world’s two largest economies went at war. It would be devastating. 

And I don’t see a lot of diplomatic effort in that way. But no one 

loves peace more than those that have helped preserve it. I guess 

there has to be a comprehensive solution rather than just militarily 

or economically. It has to be all of the instruments of national 

power and international power. 

You know, will China be unforgiving? Well, you know, I don’t 

know. Since the Treaty of Wangxia, we have been friends, since 

1744. Our entire World War II policy has been about—we entered 

the war largely over Chinese interests and sovereignty interests for 

China. With the exception of the 3 years we fought each other in 

the Korean war, you know, we have managed to somehow make it 

work. I have faith enough in the two great nations that maybe 

there is still some opportunity to do that. And I know you feel 

those same convictions. 

With that said, I am a little concerned about the Treaty of the 

Sea because some things haven’t changed. Great, we are making 

progress on the deep, you know, mining on the continental shelf. 

And those are—especially the continental shelf is extraordinarily 

important to the resources of the United States. With $18 trillion 

in debt, we could use some good news on mineral development. 

Would any of you care to address—there are provisions that are 

against intelligence and submarine maneuvers in the Treaty of the 
20 

Sea. That would have a material impact on the one nation that 

possesses a great capacity in that area. 

Submitting to international sovereignty jurisdictions also could 

weaken our argument on the International Criminal Court arguments, where we don’t want to submit to International Criminal 

Court positions because of our U.S. sovereignty. Signing up for 

Treaty of the Sea sovereignty disputes could also spill over into 

that. 

And, again, this is open discussion. If there are some brilliant 

minds sitting at the table, I would really like your thoughts on 

some of those issues. 

Dr. KRASKA. I am not a brilliant mind, but I am a lawyer. 

Mr. RUSSELL. Well, you had me until you said that, you know. 

Dr. KRASKA. And, in fact, I wrote an article just on this topic, on 

submarine operations. 

So it has been discussed by administration officials, both in the 

former as well as the present, that the Law of the Sea Convention 

affords the privilege or the right of innocent passage in the territorial sea that is within 12 miles. In order to invoke that right, a 

ship must be on the surface—a submarine must be on the surface 

and show its flag. 

That doesn’t, however, say that the submarine must do so. In 

other words, the submarine, if it wants to have the right of innocent passage, would be on the surface and show its flag and, therefore, would be cloaked in the color of law with that. If the submarine is not on the surface and within an area that is the territorial sea, there is nothing in international law that says it can’t 

be there. It just says it doesn’t have a privileged status or a right 

to be there. 

So, in general, espionage goes on all the time among states, and 

it is not contrary to international law. There are rules, for example, 

of collecting intelligence within certain countries, but there is no 

international law that forbids the collection of intelligence. And so 

a submarine within 12 nautical miles of a shoreline is presumably 

not in innocent passage, but it is not patently unlawful per se. 

With regard to intelligence operations and military activities generally, of course, the United States has already indicated that it 

would invoke the declaration under article 298 of the Convention 

and exercise an optional exception, which then forecloses any sort 

of arbitration or International Tribunal for the Law of the Sea from 

second-guessing U.S. military operations. 

The United States is not alone in doing so. Numerous other countries have done so—France, the United Kingdom. And China has 

done so. In fact, China probably would have been better served and 

maybe would have suffered, I still think, a big loss with the arbitration, but probably a narrower award if it had invoked article 

298, as was its right to do so. And I would expect the United States 

would do so. 

And once a country invokes article 298, then it is not reviewable 

by any sort of arbitration or any tribunal. The country invoking article 298 also specifies the scope of what the content of that is. So, 

assuming that we have faith in U.S. leaders to exercise the optional exception, then there would not be any sort of ability of a 

tribunal to second-guess U.S. military or intelligence collection. 
21 

Mr. RUSSELL. Well, thank you. 

And thank you, Mr. Chairman. 

Mr. FORBES. The gentlelady from Hawaii, Ms. Gabbard, is recognized for 5 minutes. 

Ms. GABBARD. Thank you. Thank you, Mr. Chairman. 

Ms. Glaser, I wanted to follow up on your response to Mr. Larsen 

about the scenario of a Chinese naval ship entering within the 12 

nautical miles of the Senkakus. And it was the last thing that you 

said. You spoke about this being a very big price to pay, but that 

Japan is already kind of taking proactive actions in preparation 

should that scenario play out. 

Can you expand on that, both the price—you know, what the 

most likely versus most dangerous courses of action would be if 

that scenario played out? 

Ms. GLASER. Well, thank you for the question. 

First of all, I think my last point was that Japan is doing a great 

deal in the South China Sea even though it is not conducting, as 

far as I know, patrols itself or jointly with the United States inside 

the 12 nautical miles around particular features. 

So it is providing coast guards, aircraft to individual countries 

like the Philippines, Vietnam, Malaysia to enhance maritime domain awareness and coordinating with the United States in that 

regard, as well as with Australia—South Korea is also taking some 

very important measures—so that countries can actually know 

when there are actions being taken by other nations inside their 

exclusive economic zone. 

So this is, I think, a very important program and enables those 

countries, or will over time, to contribute more to their regional security. So Japan is very actively involved in this. 

But, of course, their main concern, their priority security concern 

is the East China Sea. And we see, of course, Chinese operations 

continuing on a daily and weekly basis, where there are mostly 

white-hulled ships, maritime militia probably as well, that are operating inside 12 nautical miles. It is approximately three times a 

month. Recently, they have been using more ships each time they 

send ships. It used to be two or three; now it is three or four. And, 

recently, we saw a very large number of these government-owned 

ships that were inside the 12 nautical miles around the Senkakus. 

China’s naval ships have been operating closer to the 12 nautical 

miles and really the contiguous zone outside of that 12 nautical 

miles, but they have not yet entered into the 12 nautical miles, 

which I think would be extremely dangerous. 

The Japanese are taking measures to deter China from continuing to put pressure on the Senkakus, which, of course, they administer. I think that the Chinese have been, to some extent, deterred not only by what the Japanese are doing but by the fact that 

President Obama, this administration and also prior administrations, although not at the Presidential level, made it quite clear 

that the Senkakus are covered under article 5 of the U.S.-Japan 

Mutual Security Treaty. 

But, by contrast, of course, in the South China Sea, we have not 

made very clear statements, and I think this has created this grayzone area where the Chinese have taken advantage. And it is a difficult challenge for the United States and other countries to deter 
22 

Chinese activity in the South China Sea, whether it is dredging or 

further militarization. 

Ms. GABBARD. Yeah. Thank you. 

Thank you, Mr. Chairman. 

Mr. FORBES. And, Dr. Kraska, could I just follow up just a little 

bit on perhaps my friend from Oklahoma’s questioning about the 

U.N. Convention on the Law of the Sea? 

Before this convention—and since you wear the taint of being a 

lawyer, you are on there to do that—we had customary international law. And there was a body of international law, which 

people studied and nations complied with or didn’t comply with as 

they saw fit. If there was a dispute, how was that resolved? 

Dr. KRASKA. Thank you for the question. 

Just as in national law or in every jurisdiction that I am aware 

of, the later in time prevails if there is a dispute between two bodies of law. 

Mr. FORBES. No, I meant what body would actually decide that 

dispute. So, in other words, two countries differ on—when ordinary 

international law, it is floating out there, and China takes one position, the Philippines take another position. Before you had the 

U.N. Convention on the Law of the Sea, who was the arbiter of 

what that law was? 

Dr. KRASKA. States can only be adjudicated under their consent, 

so it would have to be the International Court of Justice [ICJ] or 

some sort of ad hoc arbitration. 

Mr. FORBES. So they would have to agree to who that was. 

Dr. KRASKA. That is right. 

Mr. FORBES. Under the U.N. Convention on the Law of the Sea, 

who would that arbiter be? 

Dr. KRASKA. There are four different mechanisms under the U.N. 

Convention on the Law of the Sea. And if the parties can’t agree 

on which mechanism—it could be the ICJ, it could be the International Tribunal for the Law of the Sea—and there are two types 

of arbitration. It would be an annex 7 arbitration, just as the 

China-Philippines—China did not appear, and so that was the default mechanism, which is an annex 7 arbitration. 

Mr. FORBES. And I guess one thing, just to put it out on the 

record as a little counter to the push to sign this treaty, is that it 

is not like there is no customary international law out there. That 

law is out there. It exists. You could look at a treaty like this, even 

if you didn’t sign it, and incorporate that as part of that body of 

international law. 

But I think one thing that there are some people concerned about 

is the United States has a culture that, when it signs a treaty, it 

will comply with that treaty, and, therefore, if it had a ruling go 

against it, it would comply with it. But there is some concern that 

when you get a China that is a signer to the treaty but then says 

it is not going to comply with it, that maybe there is a question 

as to why the United States would want to submit its sovereignty 

to that type of process. 

And, you know, I would just throw that out as another part of 

that debate which I think is out there as well. 

With that, gentlemen, ladies, we also had told each of you that 

we were going to allow you to have any follow-up comments you 
23 

had, clarifications, things that we didn’t cover that maybe you 

would like to. 

Dr. Erickson, why don’t we start with you this time, and we will 

end up where we started, with Ms. Glaser. 

Dr. ERICKSON. Absolutely. 

Well, thank you very much, Mr. Chairman, Ranking Member 

Courtney, members, for this opportunity to call attention to China’s 

third sea force in the context of South China Sea operations. 

There are many things we need to do to further U.S. interests 

and uphold the international system in the South China Sea, but 

I think we need to start with an honest and open discussion and 

understanding of what China is actually doing there. And it has 

been far too long that we have ignored or not adequately paid attention to the existence of this other sea force that is on the front 

lines. 

Just a couple quick additional thoughts on what we can do about 

this. 

First of all, this is a force that thrives in the shadows of plausible deniability. And I have tried to make the case today that it 

is well within our power to shine enough light to dispel a lot of 

those shadows. Thus exposed, this is in many ways a very limited, 

weak, and vulnerable force. And I believe that we can inject 

enough doubts into the minds of China’s leaders about its use in 

the scenarios we worry most about that we can change their decision-making calculus and make it much less likely that we would 

have to be confronted by elements of this force in a difficult, disorienting, or sort of CNN effect publicly—a public optically bad 

kind of way. 

There is also an additional source of leverage I would like to suggest. I am proud that I have had a chance to be involved in naval 

relations between the U.S. and China, but I think we need to make 

it clear in our policies toward China that we look at their three sea 

forces comprehensively. 

We cannot tolerate a situation in which their navy bear-hugs our 

Navy in search of best practices and diplomatic cameo ops as a 

kind of a good cop while their other two sea forces, the coast guard 

and the maritime militia, play the role of bad cops doing the dirty 

work in the South China Sea. 

So I think, by looking at this issue comprehensively, by raising 

attention to it in Congress and asking the administration to do the 

same, by communicating all of this clearly with resolve to our Chinese interlocutors, I think we can create a much better baseline 

and understanding in the South China Sea. It won’t solve all the 

problems, but it will reduce risks, put us in a much better position. 

Thank you. 

Mr. FORBES. Thank you. 

Dr. Kraska. 

Dr. KRASKA. Thank you, Congressman. 

I would close by underscoring the importance of force structure 

and forward presence in the South China Sea and in East Asia 

generally. International law and particularly customary law is built 

upon state practice, and a virtually present force that is tethered 

in San Diego or somewhere else, a notional force that can arrive 
24 

in a crisis, frankly, does not build the state practice. And so a virtual presence is an actual absence. 

And hulls in the water matter. In the warfighting context, it 

matters, perhaps, that a modern destroyer has the capability of 10 

warships in the past, but it doesn’t matter for international law. 

And so I think that, for example, having the LCS [littoral combat 

ship] vessels operate from Singapore is a big step forward and 

greater presence. I think more hulls are needed, more hulls in the 

water. 

I also think we should talk plainly about the issues. I have mentioned some of the multilateral institutions that we can approach 

and make it a priority within the U.S. delegation to bring these 

issues up. 

And it begins even with the nomenclature that we use for China’s claims, which in the U.S. Government we call them ‘‘excessive 

claims.’’ I would suggest that they are not excessive claims, they 

are unlawful claims. And we ought to just speak plainly. There is 

no legal authority to draw a big circle in the water a thousand 

miles long and then claim it as some sort of special zone or internal 

waters. And so we should get rid of these euphemisms, which I 

think raise doubt and ambiguity and play into China’s hands. 

These are unlawful claims. 

I also would recommend that we link our policies, global oceans 

policies, in particular the South China Sea, to other issues of bilateral relationships. This is what we did during the Cold War with 

the Soviet Union, I think to great effect, and we should be willing 

to do it in the South China Sea. The threats to freedom of navigation that emanate from the South China Sea and reverberate globally are a great enough threat to the United States and place 

enough of our core interests, our national interests at stake that 

we ought to be willing and able to link Chinese conduct to other 

aspects of the relationship. 

And, finally, in respect of your comment about noncompliance, 

this is always something that is faced in international law, and 

that is why I mentioned it. I don’t expect that China will suddenly 

comply with the Law of the Sea Convention. 

I think reasonable people can have different views on it. My perspective is that the benefits of the Law of the Sea Convention do 

outweigh any sort of perceived risks. We encounter the same sort 

of thing with the U.N. Charter, for example, which countries violate sometimes with impunity; China, in fact, violated it in 1974 

when it seized the western Paracel Islands from Vietnam, violating 

article 2, paragraph 4. And yet we are still a member of the United 

Nations because we believe that it is better to be within the tent 

than outside of the tent. The same with the World Trade Organization; it has a mandatory dispute resolution process. 

So there are risks of noncompliance, and that is why I would say 

that joining the Law of the Sea Convention is not the end of the 

process. And I think some advocates may view it as the end of the 

process. I view it as just one point on the way station to continue 

the struggle to shape the law. And so the problems will not go 

away when we join the convention; I just think we will be in a better position. 

Mr. FORBES. And Ms. Glaser. 
25 

Ms. GLASER. Thank you, Congressman Forbes. It is a privilege to 

be here today, and I want to thank you for especially convening 

this hearing on a very important set of issues. 

I would like to underscore or pick up on what Andrew Erickson 

referred to as influencing China’s calculus and shaping China’s 

choices. I believe that there are ongoing debates in China about 

how to best proceed on this issue of the South China Sea and others. And the Chinese may well conclude that there is too high a 

cost to pay if the United States and other countries take actions 

to impose greater costs. 

And so I think that that is really what is incumbent upon us, 

that we create an environment in the South China Sea using our 

whole-of-government approach—our military, our diplomacy, and 

our economic engagement as well. 

And there I would say that I believe, if we are to maintain our 

credibility in the region, if we are to sustain confidence in the rebalance to Asia, that it is extremely important for the Trans-Pacific 

Partnership to be ratified. This is seen by every country in the region as a litmus test of whether or not the rebalance is going to 

survive this administration. So I think that that should be a very 

high priority. 

So I would endorse the recommendation, we need to have a clear 

strategy, a report that comes from high levels in the administration, and then coordination of the various agencies and elements of 

the U.S. Government in support of the implementation of that 

strategy. 

And particularly in the military realm, we have to send clear signals. And we have to sometimes be willing to incur risk. I believe 

that the Chinese respect strength and they will take advantage of 

weakness. 

So I do not see it as inevitable that we will have a confrontation 

with China in the South China Sea if we have the correct strategy 

to avoid such confrontation and potential conflict. 

Thank you. 

Mr. FORBES. On behalf of all of our members and our subcommittee, we want to thank all of you for taking your time to be 

here. 

And, with that, we are adjourned. 

[Whereupon, at 4:33 p.m., the subcommittee was adjourned.] 

A P P E N D I X 

SEPTEMBER 21, 2016 

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SEPTEMBER 21, 2016 

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QUESTIONS SUBMITTED BY MEMBERS POST HEARING 

SEPTEMBER 21, 2016 

(93) 

QUESTIONS SUBMITTED BY MR. LANGEVIN 

Mr. LANGEVIN. Japan has recently committed to increasing its patrols and its 

training activities with the United States in the South China Sea, as well as giving 

additional military aid to countries such as Vietnam. The Philippines, conversely, 

have made little public mention of the July tribunal ruling. How are our other allies 

in the region, specifically Taiwan, reacting to the ruling on the South China Sea 

territorial disputes? 

Ms. GLASER. A total of 7 countries called on the Philippines and China to abide 

by the ruling, which is final and binding on both parties. Those seven countries are: 

the United States, the Philippines, Australia, Canada, Japan, New Zealand and 

Vietnam. Since then, however, the Philippines has downplayed the ruling, especially 

in its discussions with China. 

Taiwan’s new government under Tsai Ing-wen found the tribunal award ‘‘completely unacceptable.’’ An official statement objected to the reference to ‘‘Taiwan Authority of China’’ in the text of the award; to the finding that Taiping Island is a 

rock that isn’t entitled to an exclusive economic zone; and to the fact that the ROC 

was not invited to participate in the proceedings. The statement maintained that 

‘‘the award has no legally binding force on the Republic of China.’’ 

It should be noted, however, that Taiwan has only stated that it claims the South 

China Sea Islands. Taipei has not claimed sovereignty or jurisdiction over waters 

in the South China Sea that are not associated with land features. Taiwan’s official 

statements do not reference the 1947 11-dash line. Speaking to a crew aboard an 

ROC frigate the day following the ruling, President Tsai Ing-wen said that Taiwan 

supports resolving maritime and territorial disputes through negotiations in a 

peaceful manner. Despite rejecting the ruling, Tsai often references the importance 

of abiding by international law and UNCLOS in particular in her statements regarding the South China Sea. 

Mr. LANGEVIN. Japan has recently committed to increasing its patrols and its 

training activities with the United States in the South China Sea, as well as giving 

additional military aid to countries such as Vietnam. The Philippines, conversely, 

have made little public mention of the July tribunal ruling. How are our other allies 

in the region, specifically Taiwan, reacting to the ruling on the South China Sea 

territorial disputes? 

Dr. KRASKA. This response provides reaction by Taiwan and the following five 

U.S. treaty allies to the South China Sea arbitration award of July 12, 2016. In 

short, Japan and Australia were very supportive of the arbitration award, and their 

statements mirrored the U.S. position that the award was ‘‘final and binding’’ on 

China and the Philippines. Korea was somewhat circumspect, and adopted a neutral 

tone that ‘‘took note’’ of the award, while reiterating support for freedom of navigation. Thailand was even more ambiguous than Korea, and did not even mention the 

award in an official statement released on the day of the arbitration ruling. Taiwan 

rejected the award based upon its finding that Taiwanese-occupied Itu Aba, the 

largest feature in the South China Sea, was determined to not be entitled to a 200 

nautical mile exclusive economic zone. Taiwan did not mention the arbitration 

award’s rejection of the Nine Dash Line, which is the most egregious and unlawful 

claims by China. 

Taiwan 

The Republic of China (Taiwan) rejected the ruling the arbitration ruling because 

it held that none of the islands in the South China Sea are entitled to a 200 nautical mile exclusive economic zone. The arbitration panel ruled that all features in 

the Spratly Islands are either ‘‘rocks’’ that cannot sustain human habitation, or lowtide elevations. Rocks are entitled to only a 12 nautical mile territorial sea. Taiwan 

occupies and claims Itu Aba, the largest feature in the Spratly Islands. Under the 

ruling, Itu Aba (Taiping) would not be entitled to a 200 nautical mile exclusive economic zone. The 0.51-square-kilometer Taiping is the largest land mass in the 

Spratly Islands, and it lies about 1,600 kilometers southwest of Kaohsiung, Taiwan. 
94 

Japan 

Japan has repeatedly indicated that China should accept the arbitration ruling as 

‘‘final and binding.’’ On July 26, 2016, for example, Japan Foreign Minister Fumio 

Kishida urged Beijing to comply with an international tribunal ruling that denied 

China’s sweeping claims in the South China Sea. 

South Korea 

The Korean government ‘‘took note’’ of the arbitration ruling, and thus adopted 

a neutral position that avoided a strong signal of support. The Korean government 

reiterated its support for freedom of navigation and overflight in the South China 

Sea, and also reiterated that all conflicts should be resolved through peaceful means 

and in accordance with ‘‘relevant agreements, non-militarization commitments, as 

well as internationally established norms of conduct.’’ The Korean government also 

stated that it ‘‘hopes . . . South China Sea disputes will be resolved through peaceful 

and creative diplomatic efforts.’’ 

Australia 

On July 12, 2016, the Australian Government issued a statement that ‘‘calls on 

the Philippines and China to abide by the ruling, which is final and binding on both 

parties.’’ 

Thailand 

On July 12, 2016, the Government of Thailand released a rather ambiguous statement that did not either support or condemn the arbitration award. The statement 

indicated ‘‘Thailand attaches great importance to maintaining peace and stability in 

Southeast Asia and adjacent areas, as well as restoring trust and confidence among 

countries in the regions, in order to foster an environment conducive to sustainable 

growth and prosperity through cooperation on all constructive activities.’’ 

The situation in the South China Sea should be addressed through concerted efforts and by every means, on the basis of mutual trust and confidence as well as 

equitable benefit. 

Mr. LANGEVIN. Japan has recently committed to increasing its patrols and its 

training activities with the United States in the South China Sea, as well as giving 

additional military aid to countries such as Vietnam. The Philippines, conversely, 

have made little public mention of the July tribunal ruling. How are our other allies 

in the region, specifically Taiwan, reacting to the ruling on the South China Sea 

territorial disputes? 

Dr. ERICKSON. The answer to your question is beyond my expertise; and therefore 

I am unable to provide you a response. 

Æ