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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 412 Agreed to Senate (ATS)]

113th CONGRESS
  2d Session
S. RES. 412

  Reaffirming the strong support of the United States Government for 
freedom of navigation and other internationally lawful uses of sea and 
 airspace in the Asia-Pacific region, and for the peaceful diplomatic 
resolution of outstanding territorial and maritime claims and disputes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 7, 2014

   Mr. Menendez (for himself, Mr. Rubio, Mr. Cardin, Mr. McCain, Mr. 
    Risch, Mr. Leahy, Mrs. Feinstein, and Mr. Cornyn) submitted the 
 following resolution; which was referred to the Committee on Foreign 
                               Relations

                              May 20, 2014

   Reported by Mr. Menendez, with amendments and an amendment to the 
                                preamble
  [Omit the part struck through and insert the part printed in italic]

                             July 10, 2014

      Considered, amended, and agreed to with an amended preamble

_______________________________________________________________________

                               RESOLUTION

 
  Reaffirming the strong support of the United States Government for 
freedom of navigation and other internationally lawful uses of sea and 
 airspace in the Asia-Pacific region, and for the peaceful diplomatic 
resolution of outstanding territorial and maritime claims and disputes.

Whereas Asia-Pacific's maritime domains, which include both the sea and airspace 
        above the domains, are critical to the region's prosperity, stability, 
        and security, including global commerce;
Whereas the United States is a longstanding Asia-Pacific power and has a 
        national interest in maintaining freedom of operations in international 
        waters and airspace both in the Asia-Pacific region and around the 
        world;
Whereas for over 60 years, the United States Government, alongside United States 
        allies and partners, has played an instrumental role in maintaining 
        stability in the Asia-Pacific, including safeguarding the prosperity and 
        economic growth and development of the Asia-Pacific region;
Whereas the United States, from the earliest days of the Republic, has had a 
        deep and abiding national security interest in freedom of navigation, 
        freedom of the seas, respect for international law, and unimpeded lawful 
        commerce, including in the East China and South China Seas;
Whereas the United States alliance relationships in the region, including with 
        Japan, Korea, Australia, the Philippines, and Thailand, are at the heart 
        of United States policy and engagement in the Asia-Pacific region, and 
        share a common approach to supporting the maintenance of peace and 
        stability, freedom of navigation, and other internationally lawful uses 
        of sea and airspace in the Asia-Pacific region;
Whereas territorial and maritime claims must be derived from land features and 
        otherwise comport with international law;
Whereas the United States Government has a clear interest in encouraging and 
        supporting the nations of the region to work collaboratively and 
        diplomatically to resolve disputes and is firmly opposed to coercion, 
        intimidation, threats, or the use of force;
Whereas the South China Sea contains great natural resources, and their 
        stewardship and responsible use offers immense potential benefit for 
        generations to come;
Whereas the United States is not a claimant party in either the East China or 
        South China Seas, but does have an interest in the peaceful diplomatic 
        resolution of disputed claims in accordance with international law, in 
        freedom of operations, and in the free-flow of commerce free of 
        coercion, intimidation, or the use of force;
Whereas the United States supports the obligation of all members of the United 
        Nations to seek to resolve disputes by peaceful means;
Whereas freedom of navigation and other lawful uses of sea and airspace in the 
        Asia-Pacific region are embodied in international law, not granted by 
        certain states to others;
Whereas, on November 23, 2013, the People's Republic of China unilaterally and 
        without prior consultations with the United States, Japan, the Republic 
        of Korea or other nations of the Asia-Pacific region, declared an Air 
        Defense Identification Zone (ADIZ) in the East China Sea, also 
        announcing that all aircraft entering the PRC's self-declared ADIZ, even 
        if they do not intend to enter Chinese territorial airspace, would have 
        to submit flight plans, maintain radio contact, and follow directions 
        from the Chinese Ministry of National Defense or face ``emergency 
        defensive measures'';
Whereas the ``rules of engagement'' declared by China, including the ``emergency 
        defensive measures'', are in violation of the concept of ``due regard 
        for the safety of civil aviation'' under the Chicago Convention of the 
        International Civil Aviation Organization and thereby are a departure 
        from accepted practice;
Whereas the Chicago Convention of the International Civil Aviation Organization 
        distinguishes between civilian aircraft and state aircraft and provides 
        for the specific obligations of state parties, consistent with customary 
        law, to ``refrain from resorting to the use of weapons against civil 
        aircraft in flight and . . . in case of interception, the lives of 
        persons on board and the safety of aircraft must not be endangered'';
Whereas international civil aviation is regulated by international agreements, 
        including standards and regulations set by ICAO for aviation safety, 
        security, efficiency and regularity, as well as for aviation 
        environmental protection;
Whereas, in accordance with the norm of airborne innocent passage, the United 
        States does not recognize the right of a coastal nation to apply its 
        ADIZ procedures to foreign state aircraft not intending to enter 
        national airspace nor does the United States apply its ADIZ procedures 
        to foreign state aircraft not intending to enter United States airspace;
Whereas the United States Government expressed profound concerns with China's 
        unilateral, provocative, dangerous, and destabilizing declaration of 
        such a zone, including the potential for misunderstandings and 
        miscalculations by aircraft operating lawfully in international 
        airspace;
Whereas the People's Republic of China's declaration of an ADIZ in the East 
        China Sea will not alter how the United States Government conducts 
        operations in the region or the unwavering United States commitment to 
        peace, security and stability in the Asia-Pacific region;
Whereas the Government of Japan expressed deep concern about the People's 
        Republic of China's declaration of such a zone, regarding it as an 
        effort to unduly infringe upon the freedom of flight in international 
        airspace and to change the status quo that could escalate tensions and 
        potentially cause unintentional consequences in the East China Sea;
Whereas the Government of the Republic of Korea has expressed concern over 
        China's declared ADIZ, and on December 9, 2013, announced an adjustment 
        to its longstanding Air Defense Identification Zone, which does not 
        encompass territory administered by another country, and did so only 
        after undertaking a deliberate process of consultations with the United 
        States, Japan, and China;
Whereas the Government of the Philippines has stressed that China's declared 
        ADIZ seeks to transfer an entire air zone into Chinese domestic 
        airspace, infringes on freedom of flight in international airspace, and 
        compromises the safety of civil aviation and the national security of 
        affected states, and has called on China to ensure that its actions do 
        not jeopardize regional security and stability;
Whereas, on November 26, 2013, the Government of Australia made clear in a 
        statement its opposition to any coercive or unilateral actions to change 
        the status quo in the East China Sea;
Whereas, on March 10, 2014, the United States Government and the Government of 
        Japan jointly submitted a letter to the ICAO Secretariat regarding the 
        issue of freedom of overflight by civil aircraft in international 
        airspace and the effective management of civil air traffic within 
        allocated Flight Information Regions (FIR);
Whereas Indonesia Foreign Minister Marty Natalegawa, in a hearing before the 
        Committee on Defense and Foreign Affairs on February 18, 2014, stated, 
        ``We have firmly told China we will not accept a similar [Air Defense 
        Identification] Zone if it is adopted in the South China Sea. And the 
        signal we have received thus far is, China does not plan to adopt a 
        similar Zone in the South China Sea.'';
Whereas over half the world's merchant tonnage flows through the South China 
        Sea, and over 15,000,000 barrels of oil per day transit the Strait of 
        Malacca, fueling economic growth and prosperity throughout the Asia-
        Pacific region;
Whereas the increasing frequency and assertiveness of patrols and competing 
        regulations over disputed territory and maritime areas and airspace in 
        the South China Sea and the East China Sea are raising tensions and 
        increasing the risk of confrontation;
Whereas the Association of Southeast Asian Nations (ASEAN) has promoted 
        multilateral talks on disputed areas without settling the issue of 
        sovereignty, and in 2002 joined with China in signing a Declaration on 
        the Conduct of Parties in the South China Sea that committed all parties 
        to those territorial disputes to ``reaffirm their respect for and 
        commitment to the freedom of navigation in and over flight above the 
        South China Sea as provided for by the universally recognized principles 
        of international law'' and to ``resolve their territorial and 
        jurisdictional disputes by peaceful means, without resorting to the 
        threat or use of force'';
Whereas ASEAN and China committed in 2002 to develop an effective Code of 
        Conduct when they adopted the Declaration on the Conduct of Parties in 
        the South China Sea, yet negotiations are irregular and little progress 
        has been made;
Whereas in recent years, there have been numerous dangerous and destabilizing 
        incidents in waters near the coasts of the Philippines, China, Malaysia, 
        and Vietnam;
Whereas the United States Government is deeply concerned about unilateral 
        actions by any claimant seeking to change the status quo through the use 
        of coercion, intimidation, or military force, including the continued 
        restrictions on access to Scarborough Reef and pressure on long-standing 
        Philippine presence at the Second Thomas Shoal by the People's Republic 
        of China; actions by any state to prevent any other state from 
        exercising its sovereign rights to the resources of the exclusive 
        economic zone (EEZ) and continental shelf by making claims to those 
        areas that have no support in international law; declarations of 
        administrative and military districts in contested areas in the South 
        China Sea; and the imposition of new fishing regulations covering 
        disputed areas, which have raised tensions in the region;
Whereas international law is important to safeguard the rights and freedoms of 
        all states in the Asia-Pacific region, and the lack of clarity in 
        accordance with international law by claimants with regard to their 
        South China Sea claims can create uncertainty, insecurity, and 
        instability;
Whereas the United States Government opposes the use of intimidation, coercion, 
        or force to assert a territorial claim in the South China Sea;
Whereas claims in the South China Sea must accord with international law, and 
        those that are not derived from land features are fundamentally flawed;
Whereas ASEAN issued Six-Point Principles on the South China Sea on July 20, 
        2012, whereby ASEAN's Foreign Ministers reiterated and reaffirmed ``the 
        commitment of ASEAN Member States to: . . . 1. the full implementation 
        of the Declaration on the Conduct of Parties in the South China Sea 
        (2002); . . . 2. the Guidelines for the Implementation of the 
        Declaration on the Conduct of Parties in the South China Sea (2011); . . 
        . 3. the early conclusion of a Regional Code of Conduct in the South 
        China Sea; . . . 4. the full respect of the universally recognized 
        principles of International Law, including the 1982 United Nations 
        Convention on the Law of the Sea (UNCLOS); . . . 5. the continued 
        exercise of self-restraint and non-use of force by all parties; and . . 
        . 6. the peaceful resolution of disputes, in accordance with universally 
        recognized principles of International Law, including the 1982 United 
        Nations Convention on the Law of the Sea (UNCLOS).'';
Whereas, in 2013, the Republic of the Philippines properly exercised its rights 
        to peaceful settlement mechanisms with the filing of arbitration case 
        under Article 287 and Annex VII of the Convention on the Law of the Sea 
        in order to achieve a peaceful and durable solution to the dispute, and 
        the United States hopes that all parties in any dispute ultimately abide 
        by the rulings of internationally recognized dispute-settlement bodies;
Whereas China and Japan are the world's second and third largest economies, and 
        have a shared interest in preserving stable maritime domains to continue 
        to support economic growth;
Whereas there has been an unprecedented increase in dangerous activities by 
        Chinese maritime agencies in areas near the Senkaku islands, including 
        between 6 and 25 ships of the Government of China intruding into the 
        Japanese territorial sea each month since September 2012, between 26 and 
        124 ships entering the ``contiguous zone'' in the same time period, and 
        9 ships intruding into the territorial sea and 33 ships entering in the 
        contiguous zone in February 2014;
Whereas although the United States Government does not take a position on the 
        ultimate sovereignty of the Senkaku Islands, the United States 
        Government acknowledges that they are under the administration of Japan 
        and opposes any unilateral actions that would seek to undermine such 
        administration;
Whereas the United States Senate has previously affirmed that the unilateral 
        actions of a third party will not affect the United States 
        acknowledgment of the administration of Japan over the Senkaku Islands;
Whereas the United States remains committed under the Treaty of Mutual 
        Cooperation and Security to respond to any armed attack in the 
        territories under the administration of Japan, has urged all parties to 
        take steps to prevent incidents and manage disagreements through 
        peaceful means, and commends the Government of Japan for its restrained 
        approach in this regard;
Whereas both the United States and the People's Republic of China are parties to 
        and are obligated to observe the rules of the Convention on the 
        International Regulations for Preventing Collisions at Sea, done at 
        London October 12, 1972 (COLREGs);
Whereas, on December 5, 2013, the USS Cowpens was lawfully operating in 
        international waters in the South China Sea when a People's Liberation 
        Army Navy vessel reportedly crossed its bow at a distance of less than 
        500 yards and stopped in the water, forcing the USS Cowpens to take 
        evasive action to avoid a collision;
Whereas the reported actions taken by the People's Liberation Army Navy vessel 
        in the USS Cowpens' incident, as publicly reported, appear contrary to 
        the international legal obligations of the People's Republic of China 
        under COLREGs;
Whereas, on May 1, 2014, the People's Republic of China's state-owned energy 
        company, CNOOC, placed its deepwater semi-submersible drilling rig Hai 
        Yang Shi You 981 (HD-981), accompanied by over 25 Chinese ships, in 
        Block 143, 120 nautical miles off Vietnam's coastline;
Whereas from May 1 to May 9, 2014, the number of Chinese vessels escorting Hai 
        Yang Shi You 981 (HD-981) increased to more than 80, including seven 
        military ships, which aggressively patrolled and intimidated Vietnamese 
        Coast Guard ships in violation of COLREGS, reportedly intentionally 
        rammed multiple Vietnamese vessels, and used helicopters and water 
        cannons to obstruct others;
Whereas, on May 5, 2014, vessels from the Maritime Safety Administration of 
        China (MSAC) established an exclusion zone with a radius of three 
        nautical miles around Hai Yang Shi You 981 (HD-981), which undermines 
        maritime safety in the area and is in violation of universally 
        recognized principles of international law;
Whereas China's territorial claims and associated maritime actions in support of 
        the drilling activity that Hai Yang Shi You 981 (HD-981) commenced on 
        May 1, 2014, have not been clarified under international law, constitute 
        a unilateral attempt to change the status quo by force, and appear to be 
        in violation of the 2002 Declaration on the Conduct of Parties in the 
        South China Sea;
Whereas, on January 19, 1998, the United States and People's Republic of China 
        signed the Military Maritime Consultative Agreement, creating a 
        mechanism for consultation and coordination on operational safety issues 
        in the maritime domain between the United States and the People's 
        Republic of China;
Whereas the Western Pacific Naval Symposium, inaugurated in 1988 and comprising 
        the navies of Australia, Brunei, Cambodia, Canada, Chile, France, 
        Indonesia, Japan, Malaysia, New Zealand, Papua New Guinea, the People's 
        Republic of China, the Philippines, the Republic of Korea, the Russian 
        Federation, Singapore, Thailand, Tonga, the United States, and Vietnam, 
        whose countries all border the Pacific Ocean region, provides a forum 
        where leaders of regional navies can meet to discuss cooperative 
        initiatives, discuss regional and global maritime issues, and undertake 
        exercises to strengthen norms and practices that contribute to 
        operational safety, including protocols for unexpected encounters at 
        sea, common ways of communication, common ways of operating, and common 
        ways of engagement;
Whereas Japan and the People's Republic of China sought to negotiate a Maritime 
        Communications Mechanism between the defense authorities and a Maritime 
        Search and Rescue Agreement and agreed in principle to these agreements 
        to address operational safety on the maritime domains but failed to sign 
        them;
Whereas the Changi Command and Control Center in Singapore provides a platform 
        for all the countries of the Western Pacific to share information on 
        what kind of contact at sea and to provide a common operational picture 
        for the region;
Whereas 2014 commemorates the 35th anniversary of normalization of diplomatic 
        relations between the United States and the People's Republic of China, 
        and the United States welcomes the development of a peaceful and 
        prosperous China that becomes a responsible international stakeholder, 
        the government of which respects international norms, international 
        laws, international institutions, and international rules; enhances 
        security and peace; and seeks to advance relations between the United 
        States and China; and
Whereas ASEAN plays an important role, in partnership with others in the 
        regional and international community, in addressing maritime security 
        issues in the Asia-Pacific region and the Indian Ocean, including open 
        access to the maritime domain of Asia: Now, therefore, be it
    Resolved,

SECTION 1. SENSE OF THE SENATE.

    The Senate--
            (1) condemns coercive and threatening actions or the use of 
        force to impede freedom of operations in international airspace 
        by military or civilian aircraft, to alter the status quo or to 
        destabilize the Asia-Pacific region;
            (2) urges the Government of the People's Republic of China 
        to refrain from implementing the declared East China Sea Air 
        Defense Identification Zone (ADIZ), which is contrary to 
        freedom of overflight in international airspace, and to refrain 
        from taking similar provocative actions elsewhere in the Asia-
        Pacific region;
            (3) commends the Governments of Japan and of the Republic 
        of Korea for their restraint, and commends the Government of 
        the Republic of Korea for engaging in a deliberate process of 
        consultations with the United States, Japan and China prior to 
        announcing its adjustment of its Air Defense Identification 
        Zone on December 9, 2013, and for its commitment to implement 
        this adjusted Air Defense Identification Zone (ADIZ) in a 
        manner consistent with international practice and respect for 
        the freedom of overflight and other internationally lawful uses 
        of international airspace; and
            (4) calls on the Government of the People's Republic of 
        China to withdraw its Hai Yang Shi You 981 (HD-981) drilling 
        rig and associated maritime forces from their current 
        positions, to refrain from maritime maneuvers contrary to 
        COLREGS, and to return immediately to the status quo as it 
        existed before May 1, 2014.

SEC. 2. STATEMENT OF POLICY.

    It is the policy of the United States to--
            (1) reaffirm its unwavering commitment and support for 
        allies and partners in the Asia-Pacific region, including 
        longstanding United States policy regarding Article V of the 
        United States-Philippines Mutual Defense Treaty and that 
        Article V of the United States-Japan Mutual Defense Treaty 
        applies to the Japanese-administered Senkaku Islands;
            (2) oppose claims that impinge on the rights, freedoms, and 
        lawful use of the sea that belong to all nations;
            (3) urge all parties to refrain from engaging in 
        destabilizing activities, including illegal occupation or 
        efforts to unlawfully assert administration over disputed 
        claims;
            (4) ensure that disputes are managed without intimidation, 
        coercion, or force;
            (5) call on all claimants to clarify or adjust claims in 
        accordance with international law;
            (6) support efforts by ASEAN and the People's Republic of 
        China to develop an effective Code of Conduct, including the 
        ``early harvest'' of agreed-upon elements in the Code of 
        Conduct that can be implemented immediately;
            (7) reaffirm that an existing body of international rules 
        and guidelines, including the International Regulations for 
        Preventing Collisions at Sea, done at London October 12, 1972 
        (COLREGs), is sufficient to ensure the safety of navigation 
        between the United States Armed Forces and the forces of other 
        countries, including the People's Republic of China;
            (8) support the development of regional institutions and 
        bodies, including the ASEAN Regional Forum, the ASEAN Defense 
        Minister's Meeting Plus, the East Asia Summit, and the expanded 
        ASEAN Maritime Forum, to build practical cooperation in the 
        region and reinforce the role of international law;
            (9) encourage the adoption of mechanisms such as hotlines 
        or emergency procedures for preventing incidents in sensitive 
        areas, managing them if they occur, and preventing disputes 
        from escalating;
            (10) fully support the rights of claimants to exercise 
        rights they may have to avail themselves of peaceful dispute 
        settlement mechanisms;
            (11) encourage claimants not to undertake new unilateral 
        attempts to change the status quo since the signing of the 2002 
        Declaration of Conduct, including not asserting administrative 
        measures or controls in disputed areas in the South China Sea;
            (12) encourage the deepening of partnerships with other 
        countries in the region for maritime domain awareness and 
        capacity building, as well as efforts by the United States 
        Government to explore the development of appropriate 
        multilateral mechanisms for a ``common operating picture'' in 
        the South China Sea that would serve to help countries avoid 
        destabilizing behavior and deter risky and dangerous 
        activities; and
            (13) assure the continuity of operations by the United 
        States in the Asia-Pacific region, including, when appropriate, 
        in cooperation with partners and allies, to reaffirm the 
        principle of freedom of operations in international waters and 
        airspace in accordance with established principles and 
        practices of international law.

SEC. 3. RULE OF CONSTRUCTION.

    Nothing in this resolution shall be construed as a declaration of 
war or authorization to use force.
                                 <all>
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