U.S.–China Week: The importance of 12 nautical miles, China arrests hackers, U.S. ties with South Korea, Japan, India (2015.10.12)

Welcome to Issue 24 of U.S.–China Week. This week devotes one long entry to South China Sea issues, followed by two standard-length items. In this edition, I do not cover TPP developments, though of course Hillary Clinton’s hedged opposition is big news. For my thoughts on what TPP might mean for China, see ChinaFile’s Conversation, which includes several more distinguished voices.

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. And please send your comments, quibbles, and suggestions to [email protected].

SOUTH CHINA SEA
U.S. reportedly preps ‘freedom of navigation’ demonstration, sailing within 12 nautical miles of Chinese outposts

U.S. officials told reporters the U.S. Navy is preparing to send one or more surface ships within 12 nautical miles (nm) of unspecified Chinese-claimed features in the South China Sea. U.S. and Asian officials said allies were being briefed on the plans, which reportedly involve traveling within 12nm of one or more of China’s recently constructed or expanded artificial islands. Daniel Kritenbrink, the new top White House Asia adviser, supposedly told a closed-door meeting the decision to go ahead was already made. A Chinese spokesperson said “There is no way for us to condone infringement of China’s territorial sea and airspace by any country under the pretext of ‘maintaining the freedom of navigation and overflight.'” Chinese officials have not specified where its claimed “territorial sea” exists.

ANALYSIS: This burst of reporting, based on anonymous sources, probably indicates that after President Xi Jinping’s visit, the White House joined U.S. Pacific Command in support intra-12nm freedom of navigation (FON) operations.

Sailing within 12nm of a maritime feature has different significance depending on the nature of the feature. For what I’ll call “constructed islands” that did not originally rise above the water at high tide, entering within 12nm could come with an assertion under the UN Convention on the Law of the Sea (UNCLOS) that a constructed island does not produce a 12nm territorial sea. For what I’ll call “enlarged islands,” at least part of which originally reached above water at high tide, U.S. ships could claim to be exercising “innocent passage” under UNCLOS. China’s government has not clarified whether it claims 12nm territorial seas around the constructed islands, and U.S. FON operations could be designed to press for clarification as well as demonstrate the U.S. position regarding the law of the sea. For enlarged islands that could produce a 12nm zone, China’s government has generally implied it claims a right to authorize and/or be notified of so-called “innocent passage”—a position inconsistent with UNCLOS.

Since UNCLOS has not been ratified by the U.S. Senate, the United States does not have the right to challenge Chinese actions under the convention. If the United States conducted such a patrol in cooperation with an UNCLOS state, compulsory dispute resolution mechanisms might be available.

Non-authoritative Chinese sources, such as retired military officers and media analysts, have suggested China might respond to U.S. FON operations with confrontational tactics including ramming. These sources could be wrong, and foreign commentators generally expect a lesser response. However, by publicizing the moves ahead of time, U.S. officials have increased pressure on the Chinese government to respond strongly. If the hope was for a legalistic response, the U.S. government might have (1) ratified UNCLOS, and (2) conducted these operations quietly, only publicizing them if doing so served a policy purpose. The increasingly breathless argument that failure to conduct these operations legitimized Chinese claims holds little water, since Chinese claims are not yet explicit. On the other hand, to the extent that Chinese strategy has been to change the “facts on the water” without enunciating claims that might not find support under international law, FON operations like those under discussion might indeed force China to take a more explicit position. Whether that would be a strategic win for the United States and its allies is a question worth debating.

THE LONG ARM
Before Xi visit, China ‘arrested hackers’ identified by U.S., but their status is unclear

The Chinese government “quietly arrested a handful of hackers” identified by the U.S. government “a week or two” before Xi’s U.S. visit, Ellen Nakashima reports. Said one source: “We gave them a list, and we said, ‘Look, here’s these guys. Round them up.'” U.S. officials are reportedly waiting to see prosecutions. (Notwithstanding the language used, it is not clear whether the individuals were formally arrested or were detained in another way.) Also, Nakashima writes, “it is not clear if the hackers arrested were with the Chinese military, but they were accused of carrying out state-sponsored economic espionage.” / Meanwhile, reports emerged that the FBI had “‘high confidence’ that hackers based in China ‘have compromised and stolen sensitive military information’ from companies that provide engineering and technical services.'” Such hacking would not seem to violate the two presidents’ statements forswearing state-sponsored or -tolerated commercial hacking for competitive purposes. / And anonymous sources named three Chinese state firmsthat allegedly benefitted from the hacking that led to U.S. indictments of five PLA members.

ANALYSIS: The revelation that the Chinese government detained alleged hackers identified by the U.S. government before Xi’s visit likely suggests how far the Chinese side was willing to go in efforts to save the visit and at least temporarily avoid U.S. sanctions. Of course, secret detention does not send a message publicly within China, and the answer to Obama’s question—”Are words followed by actions?”—hinges on whether public prosecutions follow on this or other cases and whether the subsequent parallel statement has any force. To me, news that such detentions preceded Xi’s visit further calls into question whether China’s government intends to follow through in enforcement and norm creation, rather than merely doing what was necessary to save the visit. If not for the joint language that emerged during the visit, you might think of the arrests as similar to pre-summit symbolic releases of political prisoners when human rights was higher on the U.S. agenda with China.

U.S. AND THE REGION
Blinken visits Seoul, Beijing; ROK President Park to visit Washington; U.S. supports SE Asian maritime enforcement

Speaking in Seoul, where he held meetings before President Park Geun-hye’s visit to Washington this week, Deputy Secretary of State Antony Blinken cited “real progresson important issues” with China: climate change, Ebola, Iran, confidence-building measures, and Afghanistan. Blinken did not mention China in the North Korea section of the speech. Three days later, Politburo Standing Committee Member Liu Yunshan was photographed hand-in-hand with North Korean leader Kim Jong Un at a military parade in Pyongyang. Blinken also stopped in Beijing, where he met with State Councilor Yang Jiechi and PLA Chief of General Staff Fang Fenghui. / Meanwhile a State Department official described progress on the “Southeast Asia Maritime Law Enforcement Initiative,” announced in 2013, including Vietnam, the Philippines, Indonesia, and Malaysia—consisting of $100 million in U.S. support that “comprises construction and infrastructure, equipment including vessels, training and capacity building and support for greater regional cooperation and coordination. / Finally, regular U.S.–India naval exercise are to include Japanese participationgoing forward.

ANALYSIS: All this is to remind us that, while big stories in cybersecurity, maritime disputes, and trade agreements consume a lot of attention, the everyday business of transpacific diplomacy continues. Park’s U.S. visit and the U.S.–India–Japan military exercise should be a reminder that U.S. policy toward the Asia-Pacific is a highly networked set of priorities and actions. The North Korea developments underline a great source of uncertainty for every regional actor.

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 China Center at Yale Law School, where he specializes in U.S.–China diplomatic, security, and economic relations through research and Track II dialogues. A full bio is available here.

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 U.S.–East Asia politics, Transpacifica.

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

2 thoughts on “U.S.–China Week: The importance of 12 nautical miles, China arrests hackers, U.S. ties with South Korea, Japan, India (2015.10.12)

  1. Pingback: Hacker Arrests Lift Views of U.S.-China Agreement - China Digital Times (CDT)

  2. Pingback: U.S.–China Week: IBM and Apple in compliance, No ‘reckless’ force by China, U.S. differs on Australia and Korea, Hacking goes on (2015.10.19) | Transpacifica

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