Welcome to Issue 28 of U.S.–China Week. I am still traveling in China, currently on a brief stop in Shanghai. I will be getting together with a few friends and U.S.–China Week readers for an informal chat and happy hour in Beijing on Wednesday (11/11) from 7–9 p.m. Please e-mail me for the location if you are interested in dropping by.
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Through official silence, U.S. leaves interpretation of ‘freedom of navigation’ mission to speculation
Almost two weeks since a U.S. warship maneuvered near a Chinese-occupied manmade island in the South China Sea, the details of the U.S. mission have not been confirmed by authoritative sources. In the absence of an official statement, commentators and reporters working from media reports and anonymous sources have debated whether the mission undermined its own purpose by observing the rules of “innocent passage” under the UN Convention on the Law of the Sea (UNCLOS), rules relevant specifically to transiting a territorial sea that many thought the U.S. operation sought to deny. Bonnie Glaser and Peter Dutton provided a possible explanation for “innocent passage” behavior that many (including myself) missed—that Chinese-occupied Subi Reef could serve as a point from which a territorial sea could be drawn, by virtue of lying within 12 nautical miles of another feature, and therefore that the U.S. ship was respecting that other feature’s territorial sea. “The U.S. recognizes that Subi Reef is inside a legal territorial sea,” they write, working from unspecified sources. Adam Klein and Mira Rapp-Hooper make asimilar argument, focusing on Thitu Island instead of Sandy Cay. Euan Grahamdiscusses both interpretations and shows why the situation is still unclear. Unnamed sources fuel a good FT story, reporting that “the White House had actually chosen the option that involved the least provocative actions by the U.S. Navy, partly to avoid antagonizing China too much ahead of a climate change conference in Paris.”
ANALYSIS: The U.S. government has clearly decided not to provide timely, detailed information on the legal rationale and subtleties of the October 27 voyage, ensuring that the legal meaning and public message of the mission remain unclear. Why? One possibility is that the ambiguity is intended to give China room to calibrate its response, allowing the U.S. move to serve as a probe before further FON operations, reportedly to occur about twice a quarter. Another possibility is that the decision was made to “do something” but also to minimize official confrontation before the Paris climate summit that begins at the end of this month and the APEC summit in the Philippines next week, to be attended by both Xi and President Barack Obama. A third possibility is that U.S. ambiguity is a sign the Subi Reef operation was more politically than legally motivated, though I find it unlikely a decision delayed for so long was simply sloppy on the law. In any case, it was predictable that media and expert speculation, based on anonymous sources likely to have internal agendas, would fill the vacuum.
Chinese Navy told U.S. ship, ‘You are in Chinese Waters”; Xi repeats ambiguous historical claim
The U.S. ship’s commander said that during the mission Chinese military sailors repeatedly radioed, “You are in Chinese waters. What is your intention?” U.S. Secretary of Defense Ashton Carter visited a U.S. aircraft carrier in the South China Sea during a trip to Asia and said “freedom of navigation” (FON) operations would continue. President Xi Jinping, in Singapore, repeated China’s historical claim to the South China Sea but did not apparently clarify the content of that claim. In a speechdiscussed in the next item, a top State Department official specified one Chinese behavior the U.S. government objects to in the South China Sea: “The Chinese military has at times warned U.S. and other ships and planes in the region that they should not enter China’s so-called ‘security zone.'”
ANALYSIS: Precious little clarity has come out of the U.S. FON operation, but the U.S. commander’s statement that the ship was informed it was in Chinese waters was significant. The Chinese statement reportedly came when the ship neared Subi Reef, but reports haven’t clarified whether they started precisely at 12 nautical miles away. Such an assertion of possession of waters is just the type of thing that might be challenged under UNCLOS in the future. Of course, the United States cannot avail itself of UNCLOS’s compulsory dispute resolution mechanisms unless Congress ratifies the convention. This gives special significance to reporting that U.S. officials have pushed Japan to join South China Sea patrols. A multinational operation could include an UNCLOS party, allowing that other state to make a claim.
State Department’s Russel declares ‘new normal’ in relations with East Asia
Frequent high-level U.S.–China engagement has “opened the door to unprecedented cooperation in areas like climate, global health, counter-piracy, Iran, North Korea, and Afghanistan. And it has put a ‘floor’ under the relationship that ensures we can deal with disagreements or weather a crisis without risking conflict,” Assistant Secretary of State Daniel Russel said in a speech. He added: “We have never traded Chinese cooperation on global priorities for U.S. silence or accommodation on problem areas.”
ANALYSIS: Russel’s speech seems primarily designed to set the stage for Obama’s upcoming trip to the Philippines for APEC and Malaysia for the East Asia Summit. The text also implicitly answers critics, mostly of the past it now seems, who accused the Obama administration of paying insufficient attention to East Asia. In this sense, the speech is in part about staking out a legacy. The “Rebalance” (in this text is always capitalized) is declared likely to live beyond the Obama administration, and Russel declares success with China, saying, “We have established a constructive relationship with China that avoids the trap of strategic rivalry.”
OPEN A CHANNEL
First bilateral cybercrime meeting, promised during Xi visit, to take place early December
U.S. Secretary of Homeland Security Jeh Johnson said the first meeting of the U.S.–China “high-level joint dialogue mechanism on fighting cybercrime and related issues,” announced in parallel statements at the conclusion of Xi’s visit to Washington in September, is to take place December 1–2.
ANALYSIS: The original statement agreed to hold the first meeting by the end of 2015 and to meet about twice a year. With the U.S. side co-chaired by Johnson and the attorney general, the Chinese side chaired by a yet-to-be-named ministerial-level official, and diverse agencies to participate on both sides, it is reasonable to ask whether these meetings will make it past bureaucratic logistics. Still, the original statement said the “mechanism will be used to review the timeliness and quality of responses to requests for information and assistance with respect to malicious cyber activity of concern identified by either side.” U.S. officials may discuss requests to investigate alleged Chinese hackers. I wonder what “information and assistance” Chinese officials are asking for.
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).
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Contact: Follow me on Twitter at @gwbstr. Send e-mail to [email protected].
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