U.S.–China Week: Freedom of navigation or political agitation in the South China Sea? (2015.11.02)

Welcome to Issue 27 of U.S.–China Week. Shortly after I sent last week’s edition, in which I charted some conflicting signals about U.S. intentions to conduct a freedom of navigation (FON) operation in the South China Sea, media lit up with reports that one would occur within 24 hours. This round of unnamed sources were right about the timing, and this edition focuses on that event and the Chinese government’s reactions. Other issues will make their return next week.

I write now from Beijing, where I am attending meetings on and off until mid-November. I hope to have the chance to see many of you, so while I always hope to hear from subscribers, I especially hope those in Beijing (and Shanghai and Suzhou, where I may have a stray couple of hours) will drop a line.

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].

SOMETHING IS HAPPENING HERE…
Chinese reaction to U.S. South China Sea demonstration measured, ambiguous, and indicative

The U.S. Navy destroyer USS Lassen navigated through waters within 12 nautical miles of a Chinese-occupied constructed island atop Subi Reef in the South China Sea on October 26. The concrete Chinese response, in the waters at the time, seems to have been about as measured as could be expected. Two Chinese naval vessels reportedly shadowed the U.S. ship, but there has been no indication of any dangerous, unprofessional, or confrontational behavior on either side.

The Chinese government’s official responses were swift, enthusiastic, and negative—but officials were incredibly careful to maintain ambiguity about China’s specific claims. As I wrote in a close-read of the Chinese versions of the key statements (partial Chinese translation in 参考消息), officials avoided clarity on several key questions: “Do Chinese officials believe the U.S. Navy violated Chinese sovereignty? Unclear. Do they claim maritime rights surrounding constructed islands that go farther than the UN Convention on the Law of the Sea (UNCLOS) provides? Not explicitly. Will they specify exactly why the U.S. action is described as illegal? Not quite—but the door just cracked open.” The language of earlier Foreign Ministry comments about FON operations warned against violating Chinese sovereignty and spoke of the “territorial sea.” The language of the response avoided both “violate” and “territorial sea,” instead declaring that the U.S. move “threatened” unspecified “sovereignty and security interests.”

Bill Hayton argues the Chinese response included “clues that Beijing is preparing to accept a legal regime in the South China Sea closer to the United Nations Convention on the Law of the Sea (UNCLOS) than its vaguely-articulated claim to ‘historic rights.’” One Foreign Ministry comment suggested UNCLOS was, along with domestic Chinese law, a basis for Chinese claims that the U.S. operation was “illegal.” This raises as many questions as it answers, but since one likely U.S. objective in the South China Sea is to push China’s efforts into the framework international law, it is reasonable to argue that the operation had some desired effect.

…BUT YOU DON’T KNOW WHAT IT IS
What if the U.S. mission was not a ‘freedom of navigation’ operation? Rumors of impossible ‘innocent passage’

Media and expert reactions to the USS Lassen’s mission have almost universally assumed that the move was a legally tuned part of a long-standing U.S. FON program designed to demonstrate U.S. perspectives on maritime claims. If reports that the Lassen followed the conventions of “innocent passage” during its operation are correct, however, the legal point may never have been made.

If you trust an unnamed Defense News source, the U.S. ship “took steps to indicate it was making a lawful innocent passage with no warlike intent. The ship’s fire control radars were turned off and it flew no helicopters, the source said. Although a U.S. Navy P-8 Poseidon maritime surveillance aircraft was in the area, it did not cross inside the 12 nautical mile limit.” USNI News has other anonymous sources corroborating the “innocent passage” narrative. “The decision for Lassen to transit via innocent passage by Subi Reef was made by the White House from a menu of freedom of navigation missions presented by Pentagon and U.S. Pacific Commandofficials, several sources confirmed to USNI News on Monday.”

ANALYSIS: If these reports are accurate, the U.S. mission sent a mixed message. Because the original Subi Reef is believed to have been above water only at low tide, an UNCLOS-defined position would assert that a constructed island there does not produce a 12 nautical mile territorial sea. The significance of entering within 12 nautical miles depends on conduct while doing so. Even undisputed territorial seas are not completely closed to military vessels. According to UNCLOS, “innocent passage” is permitted without notice but requires following certain conditions. (The measures mentioned by the Defense News source are necessary but not sufficient for innocent passage.) But there is no legal meaning for innocent passage outside a territorial sea, and the U.S. position would be that Subi Reef has no territorial sea.

In short, by maneuvering within 12 nautical miles of Subi Reef, the U.S. Navy had the opportunity to imply non-recognition of any territorial sea. If it closely followed the conventions of innocent passage while doing so, however, the maneuver actually implied there might be a territorial sea there.

We should not, however, take these anonymous sources at face value. For months U.S. defense sources have spoken to media anonymously with messages that tend to support more assertive U.S. moves against China’s claims. I have no knowledge of who these sources are, but the USNI source’s message seems consistent with someone unhappy with White House decision-making, and with a push for further, more assertive moves. Other anonymous sources have told reporters Pacific Command and the Pentagon were at odds with the White House on this issue. So, absent more dependable sourcing or other confirmation, rumors that “innocent passage” was the mission are rumors indeed.

Whether or not the rumors are true is, in the context of FON operations, not totally relevant. FON operations are designed to establish “state practice,” a kind of precedent which has some force in international law. Therefore, relevant details of operations should be released to function as a public demonstration of a position. In that context, the publicized deliberation and apparent conflict within government before, and now after, the Lassen mission undermine clarity to the extent that this might not even be properly understood as part of the U.S. FON program.

Most troubling, if the White House did in fact choose innocent passage–style transit near a feature undeserving of a territorial sea, it in effect surrendered its principled stand in favor of a politically calculated—I’m sorry to say—provocation. The initial reaction among U.S. China hawks and other FON proponents when the Lassen news hit was a kind of euphoria that seemed to release tension within the U.S. security community. What if satisfying domestic constituencies, not standing up for international law, was the real motivation for the operation?

Rumors are rumors, and leaks are leaks, but the U.S. government undermines itself if it touts international law without taking care to avoid political undertones. Transparency, for once with attribution, may be the only solution.

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: Freedom of navigation or political agitation in the South China Sea? (2015.11.02)

  1. Pingback: Confusion Continues to Surround U.S. South China Sea Freedom of Navigation Operation - USNI News

  2. Pingback: Peace and Freedom

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