[Congressional Bills 113th Congress]
[From the U.S. Government Printing 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.
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