Lawfare Daily: Hunter Marston on the South China Sea

[Intro]

Hunter Marston: I think we're far from détente. I think the trend line, if anything, shows much more frequent and intense standoffs in the South China Sea between China and smaller claimants, most notably the Philippines, but also Vietnam.

Kevin Frazier: It's the Lawfare Podcast. I'm Kevin Frazier, senior research fellow in the Constitutional Studies Program at the University of Texas at Austin and a Tarbell Fellow at Lawfare, joined by Hunter Marston, PhD candidate at the Australian National University and Southeast Asia Associate at 9DashLine.

Hunter Marston: If China were to invade Taiwan tomorrow, most Southeast Asian states and most of the South China Sea littoral states would try to stay out of such a conflict. The Philippines, because it's a U.S. ally, would actually be directly implicated in such a conflict.

Kevin Frazier: Today we're discussing the economic and geopolitical significance of the South China Sea and why the next administration should pay close attention to this geographical hotbed of political tension.

[Main Podcast]

Alright, Hunter, can you help situate our audience by just giving us a sort of atlas. of the South China Sea? Who are the bordering states, or to use the proper term, who are the littoral states around the South China Sea? And where exactly are we when we're thinking about geography?

Hunter Marston: Yeah, the South China Sea is a major causeway for international trade, commerce, and also contains a number of islands and different states.

You mentioned littoral states, so there are a number of countries that have competing maritime claims in the South China Sea, including Malaysia, Brunei, China, Vietnam, the Philippines, and even Taiwan which has a stake in these South China Sea claims dating back to the 1940s. Roughly a third of international trade transits through the region and there are something like three trillion or more than three trillion in trade passing through the region annually.

Kevin Frazier: Okay, so hotly contested area if we're talking about trillions of dollars of trade and competing claims to this area. For those folks who haven't dove into maritime law or extensively studied maritime policy, what does it mean to actually claim part of the South China Sea? How do you claim any part of a sea as part of your own national territory?

Hunter Marston: Yeah, there's an interesting and plenty of legal nuance here and disagreements. Much of it hinges around the UN Convention on the Law of the Sea, which was passed in the ‘70s. The United States never ratified this. China has. And a number of competing claimants are entitled under UNCLOS, or the UN Convention on the Law of the Sea, to a 200 nautical mile exclusive economic zone and a 12 nautical mile territorial limit.

Now, some of this also depends on continental shelves and underwater features, which entitle you to additional claims. So the landmark decision in 2016 by the arbitral tribunal on the South China Sea, which came out of the Hague pertained to, or decided that a number of the features in the South China Sea, which were disputed, or in fact low tide elevations or submerged features, which did not entitle these countries to 12 nautical mile territorial claims.

Kevin Frazier: Okay. And we've seen that as part of an effort to expand claims by these various littoral states, there's been a sort of end round to creating new land. via the creation of islands themselves. So can you detail what does this process actually look like when China or Vietnam or the Philippines attempts to expand their territory effectively, expand their physical territory and thereby expand their claims in the South China Sea? What is that process? How are we actually building new islands?

Hunter Marston: That's right. So typically, this has occurred over submerged reefs, some of which had low tide elevations or rocks that rose above the low tide elevation of the ocean. Primarily, this has been an activity that China is notorious for now. But like you mentioned, Vietnam has also conducted its own artificial island rebuilding efforts more recently.

So between 2013 and 2015, China built close to 3000 acres of artificial islands on seven coral reefs around the Spratly Islands. It's also militarized those features. So that means building runways, radar equipment, and other bunkers, potential missile sites, all of these to extend China's own deterrence capabilities and its ability to patrol and close off the South China Sea potentially to other militaries or even international commerce.

Vietnam, more recently it's total acreage around 2021 was only 300 acres, which was roughly one tenth of China's total acreage of artificial islands at the time, has expanded dramatically in the last several years. So today that's upwards of 2000 acres, which is still far below that of China. So today, China's total acreage of artificial islands in the South China Sea is estimated at 4,650 acres.

Kevin Frazier: And by virtue of expanding these artificial islands, we see that's one attempt to try to extend more authority over the South China Sea. Can you give a broader sense of how these countries are otherwise trying to establish their authority and dominance over the region? In particular, I'm keen to hear more about the maritime activities by the different navies of these countries to really show force and to show the extent of their respective control.

Hunter Marston: Sure, and here's where you see that the great game of pace in the South China Sea is one that is marked by acute asymmetry. o by that I mean that China's navy and its coast guard forces are enormous compared to any other South China Sea claimant, and even and you know, the ship capacity of China is actually greater than that of the United States these days.

So China's ability to extend and show presence in the South China Sea far exceeds that of other smaller claimants. Back in the ‘70s and the ‘80s, some of these features first came into direct contestation when China was feeling more confident in its naval power and its foreign policies following the Cultural Revolution and internal turmoil of the 1960s.

At that point, China and Vietnam contested several features in the Paracels and Spratlys. And oftentimes these contests devolved to simple, you know, presence of fishermen on these islands planting flags, maintaining a basic human level of presence on these islands just to show we're here and that would attract the counterclaims by either China, Vietnam, or the Philippines, as well as Malaysia in certain cases to try to demonstrate that they were capable of and had occupied some of these features for some time. Sometimes that led to brutal attacks, such as the 1974 Battle of the Paracels, which led to the death of dozens of Vietnamese naval forces personnel on these islands.

Kevin Frazier: So thinking about this sort of naval show of force, not only through your formal navy, but also as we've seen in China and discussed, even empowering your fishermen to go out and try to show dominance and show force in these different areas. We've seen the use of navies in that regard. We've seen the use of physical territorial claims. Thinking though about the legal claims themselves, what is this nine-dash line policy and how does that factor into conversations about. South China Sea clams?

Hunter Marston: Yeah, so essentially the nine-dash line dates back to this Taiwanese map issued in 1947 when Chiang Kai-shek and the Republic of China forces issued or promulgated this deep southern line through the South China Sea, claiming vaguely this vast territorial claim to traditional waters of the South China Sea and the Pacific, carved out exclusively for China or Taiwan's personal, territorial claims.

But more recently, Beijing re-promulgated the nine-dash line claim in 2009, which really caused a great deal of consternation across Southeast Asia and South China Sea claimants. China made public its intent to use this as the grounds for its claim to traditional fishing rights and territorial access to the great majority of the South China Sea.

And notably this nine-dash line infringes on many of the smaller exclusive economic zones of maritime claimant states, such as Malaysia, the Philippines, Brunei, and Vietnam, despite the fact that China itself has ratified UNCLOS.

Kevin Frazier: And so seeing the establishment of this nine-dash line and the attempts to enforce that nine-dash line policy by China, how has the U.S., in particular, before we get to some of the regional stakeholders, how has the U.S. attempted to kind of upend or disturb the nature of that claim?

Hunter Marston: Yeah, well, the United States has consistently spoken out in favor of the 2016 Arbitral Tribunal's ruling, which negates China's nine-dash line, as well as its claim to many submerged features within those waters.

At the same time, the United States regularly deploys what's called freedom of navigation operations around the world, but notably in the South China Sea. This has drawn a great deal of attention because it tends to dispute and contravene China's own territorial claims. China doesn't recognize the legal rights of the United States to conduct FONOPs, which I think technically do not require you to announce peaceful passage because the freedom of navigation operations operate on UNCLOS law, which holds that you can sail within these international waters including warships and commercial vessels.

So, the United States regularly does this to contravene the claims of Beijing, as well as smaller claimants, including Vietnam, who is a strategic partner of the United States. So it's not limited or meant to signal bias against any Chinese claims. The United States is actually neutral to the bilateral territorial disputes involving South China Sea claimants. But it stands for the principle of rule of law. And even though the United States itself has not ratified UNCLOS, the United States consistently acts in accordance with that law.

Kevin Frazier: As turbulent as the South China Sea is, we see these, pardon the metaphor, tidal changes in the dynamics between the different littoral states, China sometimes being the leader in building out these new territorial claims by building even more islands, by sending out even more military officers to those various islands. Then the Philippines get involved, then Vietnam gets involved, then they make different arrangements with one another. So the sand is shifting in a lot of different ways.

I want to zoom out quickly and given that we're talking in the middle of October, right before the election, has the U.S. policy towards the South China Sea remained consistent from the Trump administration to the Biden administration? And then the second part of that question would be, can we expect a Harris administration or a second Trump administration to more or less continue the similar approach to launching these freedom of navigation efforts? Or do we expect some shift from either administration?

Hunter Marston: Yeah, great question. So, I think firstly with Trump to Biden broadly, there's been a great deal of continuity. The Biden administration preserved the basic premise of strategic competition with China. And if anything, I think we should probably go back to the beginning of the Trump years to sort of situate the listener in light of the Trump administration's increase in the regularity and scale of freedom of navigation operations in the South China Sea.

So this is something the Obama administration had done previously, though not as frequently as the Trump administration, which made a point of regularly sending freedom of navigation operations or FONOPs into the South China Sea specifically designed to, I think, show China that the United States was paying attention to this region, which the Obama administration had previously attempted to rebalance to, or pivot to, given their foreign policy branding around that pivot strategy to Asia.

The Trump administration did a great deal more to demonstrate regular U.S. presence in these waters and counter China's claims to show that we weren't taking our foot off the pedal. And if anything, we were there to back up and support allies and partners. Although it did that at the same time as President Trump frequently made certain personal appeals to Xi Jinping and praised his leadership style. And I think individually didn't care a great deal about what happened in the South China Sea to, to smaller states like Vietnam and the Philippines, U.S. ally, the Philippines, that is. And the Biden administration has more or less kept up the regularity of FONOPs. If anything, it's declined slightly.

I would anticipate moving into a potential Harris administration that would maintain consistency. You know, I don't think we should expect a necessarily more bellicose China strategy on the part of a Harris administration, but Harris hasn't said a great deal about Asia or foreign policy when it comes to competition with China. So that really remains to be seen.

I think Trump has wanted to characterize the Biden administration as weak on China, and therefore we could probably anticipate a return to increased FONOPs and more directly confrontational behavior vis-à-vis China. As well as sort of unilateral decisions that don't always tap into local thinking in the capitals of various strategic partners, such as Vietnam, Singapore, Malaysia, which really informed the U.S. ability to keep presence in the region and to have a diplomatic sort of bulwark to push back on China's behavior.

Kevin Frazier: Because you're my go-to in the middle of trivia, if I ever get a question on any Southeast Asian country, it would be helpful, I think, for Lawfare listeners to benefit from that knowledge as well, even if they're not in the middle of a trivia game.

So walking through some of these key players here, like the Philippines, we've seen the Philippines had a relatively recent change of power. How has that change of administration, change of government, shifted their own perspective about the bellicosity, to use your fun word, in the South China Sea context?

Hunter Marston: Yeah, the Philippines is really interesting. So first of all, the Philippines has six-year presidential terms, which is a significant period of time. And I think across any recent administration in the Philippines, we can observe a great deal of vacillation in the Philippines foreign policy, especially regarding China. In short, every Philippine president comes into power wanting to sort of reestablish a positive relationship with China. And ultimately, most fail to do so because of China's actions in disregard for Manila's own sovereignty.

At the same time, the Philippines has been an ally of the United States for more than half a century dating back to the 1951 Mutual Defense Treaty. And before that the basing agreement, which gave the United States access to Subic Bay and Clark Air Force Base. Some of this dates further back to the United States colonial occupation of the Philippines until the late 1940s. And essentially, the Philippines has been unable to push its military modernization far enough to stand up on its own and not rely on the alliance with the United States and the mutual defense treaty, which undergirds its security and therefore broadly underpins its foreign policy vision and its ability to stand up to China.

Every Philippine leader essentially tries to rebalance the relationship with China and reframe the alliance with the United States, striving for an independent foreign policy, which is actually enshrined in the Philippines Constitution. So Duterte did this by jettisoning the 2016 agreement, decreeing China's claims to island futures and rocks in the South China Sea is null and void.

Duterte said he wasn't going to use this, was not going to pursue this legal decision to push back on China's claims. In fact, he said it's just a piece of paper. He wasn't going to press the case. Seeing that, you know, the international community largely viewed the legal consensus on the Philippines side and the decision, the ruling in Philippines’ favor as a source for potential momentum, this was kind of a big setback in the Philippines efforts to protect its sovereignty in the West Philippine Sea, as it began to call it.

Duterte's own government actually pushed back a great deal on this, and the naval forces and Philippines Coast Guard in particular, and the Ministry of Foreign Affairs constantly sort of forced a return to the status quo ante in this regard, and ultimately, Duterte's efforts to scrap the visiting forces agreement with the United States military came up short because China's coast guard and maritime militia continued to coerce, to attack Philippine forces in the West Philippine Sea, and ultimately Duterte was forced to sort of re-rely on the United States Mutual Defense Treaty.

When President Ferdinand Marcos Jr. came to power in 2022, he essentially tried to preserve a working relationship with China while going about slowly asserting a stronger case for Philippines’ maritime sovereignty rights. And it did so by restoring the alliance with the United States, by solidifying and strategic partnership with Japan, and signaling that the Marcos administration would take more seriously and try to cast a light on many of China's transgressions in the West Philippine Sea.

Kevin Frazier: Building on that, I think the other key player to mention here, when we're thinking about continuing chess pieces move in the South China Sea, would be Vietnam. For listeners who don't wake up to Southeast Asian news, earlier this month we had China and Vietnam announce that they were going to continue, quote, friendly consultations with one another in the South China Sea. And this sounds like a lot of diplomatic doublespeak that I'm not quite sure how to interpret.

So historically we've seen Vietnam and China be quite combative physically and diplomatically about South China Sea claims and interventions. How does this new agreement, this new joint statement, I should say, give us an insight into what we can expect from Vietnam in particular with respect to the South China Sea?

Hunter Marston: Yeah, the statement, I didn't, surprise me by any means, you know, Vietnam and China regularly hold high-level direct talks and that's part of Vietnam's hedging strategy vis-à-vis China and the United States. So, in short, Vietnam has been at the forefront of China's efforts to contest South China Sea claims and to push back on the ability of smaller states to maintain a presence on smaller islands to access fishing waters and to conduct resource exploration in the waters within its 200 nautical mile exclusive economic zone.

Vietnam and China essentially compartmentalize this part of the relationship, which is the source of a great deal of friction. Otherwise, you know, Vietnam and China are close trading partners, strategic partners. Hanoi looks to the Chinese Communist Party as a source of solidarity and sort of communist ideological fraternity.

So the two countries are very close culturally, politically and economically. And the South China Sea issue, or the East Sea, as the Vietnamese call it, is really the driving force for Vietnamese nationalism and opposition to a closer relationship with China. So this is a continual source of friction, but Vietnam has throughout the last decade and more managed to compartmentalize this issue, and it does so by holding regular high level meetings with Chinese Communist Party leaders.

Kevin Frazier: Well, Hunter, we're now left with two key players that I want to walk through before getting a broader sense of what we can expect or what factors we should think about when we're thinking about the South China Sea, as we all do once we finish thinking about Rome. And I'd start with thinking about China, right? We've mentioned China. It's been the looming presence. We've walked through kind of the historical pivot that we saw from President Xi Jinping, making this again, a key consideration starting in the mid-2010s.

How have we seen that policy evolve over time? And what can we expect in 2025 and beyond from China? Is this still a key national priority? Are we seeing the same level of investment and resources and political will, or are we perhaps reaching some sort of détente in the South China Sea?

Hunter Marston: I think we're far from détente. I think the trendline, if anything, shows much more frequent and intense standoffs in the South China Sea between China and smaller claimants, most notably the Philippines, but also Vietnam.

Just in late September, the Chinese brutally attacked Vietnamese fishermen near the Paracels. The Chinese forces and coast guard have also rammed Philippine Coast Guard vessels and fired water cannons at Philippine fishing ships near Scarborough Shoal and then nearby Sabina Shoal, forcing the Philippines to back down ultimately.

And the pace of these has increased over recent years. So, exactly a decade ago, or a little more than a decade ago, in May 2014, a tense standoff occurred between Vietnam and China. My dissertation looks at this chapter closely because it was not an isolated incident, but it was a particularly acute flare up of bilateral tensions in the South China Sea.

And that forced a lot of reckoning within Hanoi about how to handle this challenge from China. And ultimately, as I mentioned earlier, Hanoi has settled on this hedging strategy whereby it preserves strong working relationship and party-to-party ties with Beijing, but it's also sought to increase its defense diplomacy by working with strategic partners such as Japan, India, and the United States, as well as Korea, to build out its own maritime capabilities and to be able to push back on China's behavior in the East Sea.

The Vietnamese-China relationship, again, had a significant downturn in 2017, 2019. But more recently, from 2021, I would argue, until 2024, the Chinese have really been pushing full force against these smaller claimants, most notably the Philippines and less so Vietnam. And I think that's particularly because of the Marcos administration's efforts to fortify the alliance with the United States and the perception that Manila here should be seen as an outlier. And that's at least how China would like to portray the Philippines because it's willing to stand up to China and because the U.S. alliance, China would like to characterize as antithetical to a peaceful regional order.

Kevin Frazier: So of course, there's one missing piece in the South China Sea and one critical dynamic that we haven't quite gotten to yet, which is Taiwan. So how does Taiwan factor in here? We haven't referred to it much in terms of actively attempting to expand its claims or build any islands or push back actively by firing its own water cannons.

So have we seen proactive measures by Taiwan or is it a more defensive posture and how does this kind of all broadly fit into U.S. concerns about a potential invasion of Taiwan by China?

Hunter Marston: Yeah there are a few ways to look at this here. So Taiwan has this awkward historical claim to the South China Sea dating back to the 1947 origins of the nine-dash line and the map which Chiang Kai-shek and the ROC issued first signifying its claims to those waters. But in recent decades, Taiwan has, I wouldn't say distanced itself from those claims, but it's just more or less buried its head in the sand.

And that's partly because there's no real impetus to give up on previous territorial claims or back down from those for fear perhaps of domestic political backlash if there's any nationalism tied around those claims. I think that fear might be overwrought and if anything, I think this is just kind of a moot point in Taipei.

Given, I said it's awkward because given Taiwan's reliance on international law and being perceived as sort of a responsible stakeholder in the international system, I would argue that it would be wiser for Taiwan to explicitly give up those claims in South China Sea and show that it is willing to side with UNCLOS and the rights of smaller maritime claimants such as the Philippines and Malaysia.

Taiwan's recognition in Southeast Asia has fallen off a cliff and essentially it has few remaining diplomatic partners. That doesn't mean that it doesn't have friends in Southeast Asia. It still has robust economic ties to a number of Southeast Asian countries as part of its new southbound policy, which previous president Tsai Ing-wen espoused early in her administration. But that said, I think Taiwan could go further by explicitly saying that it was willing to abandon claims to the South China Sea and, you know, would therefore, I think, engender a great deal of sympathy from Southeast Asian states, which generally don't have strong feelings on the China-Taiwan dispute itself.

Now to your second question. So, Taiwan also has explicit security linkages to the South China Sea with regard to the U.S.-Philippines Mutual Defense Treaty and more recently the 2014 Enhanced Defense Cooperation Agreement between the United States and the Philippines. After the Duterte administration, which had essentially hung this agreement up and not pushed it forward in any significant degree, the Marcos administration has expanded the list of, or access on the part of the U.S. military to bases in the Philippines by adding four additional bases in the north of the Philippines in Luzon, which have an explicit or sort of near geographic connection to Taiwan and a potential contingency of a Taiwan invasion.

So it's difficult to say with any certainty, but if China were to invade Taiwan tomorrow, most Southeast Asian states and most of the South China Sea littoral states would try to stay out of such a conflict. The Philippines, because it's a U.S. ally, would actually be directly implicated in such a conflict, and those bases, while Marcos has said, that they are not overtly intended as a sort of forward positioning location for U.S. military forces in the event of a Taiwan contingency, they would necessarily have a bearing on that conflict.

So the Philippines is in a very sensitive situation here, and any moves by China to coerce, blockade, or invade Taiwan make Manila quite nervous.

Kevin Frazier: Now that we have, you know, a building sense of anxiety around the South China Sea, if you were in the Situation Room or in the Oval Office for any administration on, let's say, January 21st, 2025, what are some key factors or some key players that you would recommend the President keep in mind or the National Security Council keep in mind when we're trying to think about the extent to which we should continue these freedom of navigation operations, the extent to which we should really be empowering Marcos, for example? Or what are our key priorities from a U.S. perspective going forward when we're thinking about the South China Sea?

Hunter Marston: Great question. Much of that, of course, depends on who wins in November. If President Trump is reelected, I would emphasize the importance of allies and partners, which have which largely went unnoticed or were denigrated under the previous Trump administration. So the Trump administration had, to give it some credit, some fairly robust strategic thinking and forward-facing ideas on strategic competition with China. It just didn't tap into the value of U.S. allies and partners in that broader strategy.

And that was most visibly seen, I think, by Trump's statements on U.S. forces in Korea. And, you know, the idea that allies should be paying us a protection fee for alliances. And casting doubt on the willingness of Washington to come to any of its allies’ defense in the event of a conflict with China in particular. So I would emphasize that, you know, the U.S. relies on allies and partners to maintain its forward presence in the region.

The U.S. has something like 375,000 troops and military personnel, inclusive, in the Pacific. Much of that, or I think it's something like 30,000 in Korea. Roughly similar size in Okinawa and 22,000 U.S. troops in Guam. So, the U.S. relies on allies and partners in the Pacific to maintain a robust presence that pushes back on any successful effort by China to overturn the existing regional order and balance of power.

I would also caution the Trump administration from sort of getting over its skis in asking too much of partners, which prefer hedging strategies and would like to remain neutral in any U.S. China competition given their close economic relations with China and the geographic reality that China is inescapable. And specifically, I'm thinking of the idea floated during the Trump years that we could have a First Fleet stationed in Singapore. This really got Singaporeans nervous and made them think that the U.S. had completely misunderstood the nature of the strategic partnership between the 2 countries.

So I think we need to be careful to respect states’ neutrality and hedging strategies. They prefer ambiguity and would like to maintain cordial relations with the United States. They want to support the U.S. presence in the region, but they don't want to be thrown under the bus by being seen as anti-China and joining this sort of coalition to contain China.

With the Harris administration, I would encourage them to keep up the FONOPs because backing down from these risks, signaling inattention to the region and disinterest in or complacency with the current status quo, which is actually not in the U.S. favor. So China's naval forces and maritime militia have significantly expanded their capacity and numbers in sheer tonnage and presence in the South China Sea and the Pacific, and now rival or could threaten U.S. presence in the region, especially within the first island chain.

So I think it's important for the U.S. to maintain a robust, forward presence in the region. I would encourage the Harris administration, if one comes to emerge in January, to reinforce the mini-laterals, the latticework that the Biden administration has worked so hard to prop up, and to encourage that includes QUAD, that is India, Japan, Australia, and the United States. And things like AUKUS., because the U.S. is no longer the number one sort of top dog and can't do it all alone.

You know, it needs allies and partners to support its goals in the region. And if it really wants to see a free and open Indo-Pacific, it'll have to do more to show its interest in the region. And that extends to economic statecraft, which the U.S. has largely abandoned in light of the sort of nationalist and domestic furor over free trade agreements.

Kevin Frazier: I suspect we will be hearing from you again as the winds continue to blow in the South China Sea and the sands continue to fly in the South China Sea. We're going to have to leave it there though, but thanks again for coming on, Hunter.

Hunter Marston: Great. Thanks so much, Kevin. It's been a pleasure.

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