U.S.–China Week: New ‘FON’ op.; Duterte’s ‘separation’ from U.S.? (2016.10.24)

Welcome to issue 74 of U.S.–China Week. The big event in Chinese politics this week is the 6th Plenum, on intra-Party issues. China Daily has a jolly-looking diagram of some basics on that meeting. Speculation has focused on a call to raise President Xi Jinping’s status and/or raise the retirement age for top leaders. Meanwhile, on U.S. policy toward Asia, subscribers may be interested in my review of former Assistant Secretary of State Kurt Campbell’s book The Pivot for the Los Angeles Review of Books China Blog.

It was an eventful week of news. Because of the complexity of the two big stories—the Philippine president’s trip to China and a newly reported U.S. “freedom of navigation” operation in the South China Sea—I will focus on those and list a few other news items without discussion at the conclusion.

As always: Please encourage friends and colleagues to subscribe to U.S.–China Week. Here is the web version of this issue, ideal for sharing on social media. You can also find U.S.–China Week on Medium and on Facebook, and you can follow me on Twitter at @gwbstr. And please send your comments, quibbles, and suggestions to[email protected].

LOYALTIES
Duterte’s comments about ‘separation’ from US drown out long list of deals reached during Beijing visit

Chinese protocol authorities pulled out all the stops for visiting Philippine President Rodrigo Duterte, who had well-publicized meetings with four of seven Politburo Standing Committee Members (Zhang Gaoli, Zhang Dejiang, Li Keqiang, and Xi Jinping). In a joint statement, the two governments said they signed 13 memoranda of understanding on issues ranging from development and economic cooperation to drug enforcement cooperation and, most relevant for South China Sea observers, one to establish a coast guard cooperation committee. “China understands and supports Philippine Government’s efforts in fighting against illicit drugs,” the statement reads, underlining Chinese support in an area where U.S. officials and observers have deep concerns about extrajudicial killings. On the South China Sea, the statement announced a regularly meeting “bilateral consultation mechanism” to address “confidence-building measures to increase mutual trust and confidence.” This mechanism is explicitly “in addition to and without prejudice to other mechanisms,” suggesting existing bilateral and multilateral fora are not to be supplanted. The joint statement endorses the Chinese boilerplate language on “friendly consultations and negotiations by sovereign states directly concerned” and does not mention the UNCLOS tribunal’s award. A Chinese Foreign Ministry spokesperson said “The two sides discussed fishery cooperation in the South China Sea including bilateral cooperation on fishing industry,” but it was unclear whether Philippine fishing boats would regain access to Scarborough Shoal, as suggested in a Reuters report.

Christopher Mirasola at Lawfare has the best single summary of the Duterte visit I’ve seen. International headlines focused on Duterte’s dramatic statements and thereported “$24 billion in investment and loan pledges” he brought home. (It was not clear whether a rumored joint oil exploration deal had been made.) Duterte said on Thursday “I announce my separation from the United States…both in military and economics also.” As video shows, Duterte also said to Chinese counterparts, “I have separated from them, so I will be dependent on you for a long time.” A State Department spokesperson said, “We are going to be seeking an explanation of exactly what the president meant when he talked about separation from the U.S.,” noted that Assistant Secretary of State Danny Russel would be on a long-scheduled trip to Manila over the weekend, and characterized the United States as “baffled by this rhetoric.” That briefing is a heck of a read. After arrival, Russel’s bureau tweeted a photo of local papers with the comment, “Arrived in Manila. Trying to make sense of what we’re hearing. Will ask our friends.” Duterte, Philippine Trade Minister Ramon Lopez, and Foreign Minister Perfecto Yasay each seemed to partially walk backDuterte’s “separation” comments. Duterte said he meant “separation of foreign policy,” as distinct from following the U.S. lead. In Manila, Russel responded to the rhetorical adjustments, saying “Well, if ‘separation’ means that the government in Manila makes its own foreign policy decisions based on its own assessment of the Filipino national interests then there is no need for a change.”

ANALYSIS: It’s time to slow the reaction cycle between the United States and the Philippines. Since Duterte’s statements (only last week reportedly claiming no “bargaining” on the South China Sea) change character quickly, officials and analysts should watch for substantive change. Will the anti-drug efforts become less violent? Will any real push be made to eject U.S. troops or depart from the recently solidified Enhanced Defense Cooperation Agreement? Will China’s promised deals amount to anything close to the $24 billion sticker price? And will this diplomatic pageantry prove to lead to a true change of phase in the South China Sea security and sustainability situation? Unless sudden, concrete action is taken to break from the United States, it would be unwise to discount the great momentum of past arrangements in the face of erratic public gestures. The truth of the direction and magnitude of any current shifts cannot be derived from provocative headlines.

SOUTH CHINA SEA
US conducts ‘freedom of navigation’ operation challenging Chinese claims in Paracels; legal rationale unclear

Reuters reported that a U.S. guided-missile destroyer conducted a “freedom of navigation” (FON) operation near the Paracel Islands in the South China Sea. U.S. officials speaking on condition of anonymity said the ship, the USS Decatur, navigated near Triton and Woody Islands (which lie about 100 miles apart) and did not pass within 12 nautical miles of “the islands,” according to Reuters. A Reuters source said this FON operation was planned previously and not intended to coincide with Duterte’s visit to Beijing. After the initial report said the Pentagon declined to comment, a later report carried Pentagon comment and White House spokespersonreaction. A Ministry of Foreign Affairs spokesperson said (en/zh) the Decatur violated Chinese law by “entering Chinese territorial waters (领海)” without approval, saying the action “infringed upon China’s sovereignty and security interests, violated relevant Chinese law and international law (严重侵犯中国主权和安全利益,严重违反中国相关法律和国际法).” The Chinese Ministry of Defense issued astatement (and English summary) citing the same domestic law and reporting that two PLA Navy ships responded to the operation.

ANALYSIS: Media reports and U.S. government statements did not specify which Chinese claim or claims the operation challenged. The White House did say that it “demonstrated that coastal states may not unlawfully restrict the navigation rights, freedoms and lawful uses of the sea,” but the rest of us are presently left to speculate on the legal point being made. Assuming Reuters’ sources are correct in suggesting the Decatur did not pass within 12nm of any island, I believe the most plausible interpretation is that the U.S. maneuver was designed to challenge China’s boundaries around the Paracels as a group (known as straight baselines), which the U.S. government has long claimed are not consistent with UNCLOS. (“Excessive straight baselines” is one of the classes of Chinese “excessive maritime claims” the U.S. government reports having challenged in fiscal year 2015.) The Chinese claim that the U.S. ship entered China’s territorial waters (领海) may seem at odds with reports that it did not enter within 12nm of Woody or Triton islands, but the territorial sea claim here is measured from the baseline, not the land feature. Thus since the baselines China has declared extend well farther than 12nm from any feature, the U.S. ship might have entered part of China’s claimed territorial sea that is not actually within 12nm of a land feature (see my hypothetical doodle). The ship may also have entered inside the declared baselines, which the Chinese government considers “internal waters,” but the Chinese response only mentioned territorial waters (领海), not internal waters (内水). (There is slippage in English-language Chinese documents between “territorial waters” and the UNCLOS term “territorial sea,” but the Chinese consistently sticks with the UNCLOS term. This time we do not observe the earlier ambiguous phrasing of “neighboring” or “nearby” waters.) And just to be clear: the Reuters report could be wrong about whether the ship passed within 12nm of islands; and there has been no statement addressing one of the usual questions—whether innocent passage norms were followed during transit.

The present operation was not accompanied by a detailed statement like the onereleased to media in January when the USS Curtis Wilbur was sent to challenge requirements of “prior permission or notification of transit” through territorial seas, or the specific Defense Department explanation provided after the previous operation in May. Just last week I noted a Russel statement that FON operations might not all be publicized. In this case, the initial Reuters report cited unnamed officials speaking anonymously. Only later did the White House and a Defense Department representative confirm the operation. I see no way to tell whether the present story was originally the result of a true leak, or whether U.S. decision makers decided to put the word out but to do so quietly. What is crystal clear to me is that if FON operations are to make a legal point before the world, some specifics need to be public. If the goal is, more narrowly, to ensure that Chinese forces remain accustomed to U.S. and other ships exercising legally guaranteed freedoms, then only the Chinese government needs to know. In this latter case, however, I am skeptical of the “FON operation” label. Instead, I would be tempted to read these quiet demonstrations of U.S. will to remain in the area as part of the neighboring concept of “presence operations” also conducted by the U.S. military.

ROUNDUP

Regional security:

Trade:

Cyberspace and tech:

#USChinaWeek1966
‘The U.S., the U.N. and China’

NYT editorial, October 21, 1966: “A thoroughly realistic policy toward admission of Communist China to the United Nations is put forward in a report released today by a citizens’ group headed by former Under Secretary of the Treasury Robert V. Roosa. The panel makes no claim that U.N. representation would promptly dilute Peking’s bellicosity or bring greater stability overnight to Southeast Asia. It concedes that Peking probably would not immediately accept U.N. membership under the ‘two-China’ plan the panel recommends, and that it would be likely to disrupt procedures and obstruct the machinery once its agents had arrived at Turtle Bay. But the Roosa panel approaches the problem from another direction, and bases its case on the obvious fact that without participation of the regime that governs a fourth of the world’s people, the United Nations will continue to be frustrated on many fronts; there will be no possibility for durable stability in Asia; and far less chance for a gradual mellowing in Peking. Far better, as the panel recommends, to ‘open up lines of negotiation’ and expand contacts with Peking in the hope that over a period of time ‘some moderating adjustments might come.’ … The certainty is that the United States will never know whether a ‘two-China’ solution is acceptable until it tries—and the time for trying is running out.”

(This entry is part of an ongoing feature of U.S.–China Week that follows U.S.–China relations as they developed in another era of change and uncertainty, 50 years ago.)

ABOUT U.S.–CHINA WEEK

U.S.–China Week is a weekly news and analysis brief that covers important developments in U.S.–China relations and features especially insightful or influential new policy analysis.

Graham Webster is a senior research scholar, lecturer, and senior fellow of the Paul Tsai China Center at Yale Law School, where he specializes in U.S.–China diplomatic, security, and economic relations through research and Track II dialogues. His website is gwbstr.com.

Disclaimer: Opinions expressed here are my own (and I reserve the right to change my mind).

Subscription to U.S.–China Week by clicking here or e-mailing me is free and open to all, and an archive of past editions appears at my long-running website on East Asia and the United States, Transpacifica.

Contact: Follow me on Twitter at @gwbstr. Send e-mail to [email protected].