U.S.–China Week: Sticking with ‘innocent passage,’ cyberspace norm ‘experts group,’ state firms claim ‘immunity’ (2016.05.16)

ABOARD UNITED FLIGHT 89, above northeastern Canada* — Welcome to issue 52 of U.S.–China Week. Publishing today on my way to Beijing, this edition primarily addresses the most recent U.S. freedom of navigation (FON) operation in the South China Sea and the regional reaction. I will be traveling non-stop for the next three weeks, so the next few editions may arrive on a modified schedule. Aside from Beijing, in about two weeks I will be visiting with East Asia specialists in Honolulu, and I look forward to meeting several readers there. If you’re in Beijing or Honolulu, or if you’re in the Bay Area (where I’ll be based this summer with my usual responsibilities and a new set of activities on cyberspace issues), drop me a line.

At the end of this week, President Barack Obama will be in the region as well, in Vietnam and Japan. The Foreign Press Center should have a transcript of today’sbriefing by administration officials before too long.

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].

*If I’m not going to file from an aircraft carrier, this will have to do.

SOUTH CHINA SEA
In latest ‘freedom of navigation’ voyage, China maintains ambiguity about U.S. ‘innocent passage’

In its third formal “freedom of navigation” (FON) operation in the South China Sea since October, the U.S. military sent a guided missile destroyer through waters within 12 nautical miles of Fiery Cross Reef, a feature in the Spratly Islands that was reportedly once a small outcropping at high tide but now is home to a large Chinese outpost. In a statement sent to media but not apparently posted on a government site, a Defense Department official said the operation was conducted under the conventions of “innocent passage” and was designed to challenge “attempts by China, Taiwan, and Vietnam to restrict navigation rights around the features they claim, specifically that these three claimants purport to require prior permission or notification of transits through the territorial sea, contrary to international law.” Zack Cooper and Bonnie Glaser helpfully discuss some recent hand-wringing among observers who fear that conducting innocent passage-style FON demonstrations sends too weak a message; Cooper and Glaser speculate that the U.S. government may turn to its first non-innocent passage operation near Mischief Reef after the Philippine arbitration case against China concludes. (On the arbitration, a Chinese Foreign Ministry official this week set out a detailed set of positions, available inChinese and English versions.)

The official Chinese response to the Fiery Cross voyage was very similar in wording to responses following the first such operation in October, near Subi Reef. At the time, I argued in The Diplomat that the Chinese-language statements reflected a careful effort to maintain ambiguity about what precisely China was claiming. This time, we see in the Foreign Ministry spokesperson’s statement (Chinese, English) a repeat of the argument that the U.S. ship “illegally” entered “waters near” (邻近海域) the Chinese-claimed Nansha Islands (Spratly Islands). The spokesperson then uses a different term to assert Chinese sovereignty over the Nansha Islands and the “adjacent waters” (附近海域). Like in October, there is no mention of a “territorial sea” (领海) or any violation of sovereignty; things are left open to interpretation. Unlike in October, the Defense Ministry statement (Chinese, English summary) very precisely followed the same formulation. In the present statements, I find no explanation of what about the U.S. action was allegedly “illegal.”

A State Department spokesperson faced some skeptical questioning on the basis for the U.S. legal judgment about what claims are “excessive.” And the Foreign Ministry statement discussed above spent some energy arguing the U.S. FON program was designed not to back the UN Convention on the Law of the Sea (UNCLOS), but rather to push a U.S.-preferred maritime order.

Later in the week, the Chinese military initiated a video teleconference between Chairman of the Joint Chiefs of Staff Gen. Joe Dunford and his counterpart Gen. Fang Fenghui. A U.S. spokesperson said: “The video connection was lauded by both as a valuable channel of communication and means to exchange views, manage both cooperative and contentious issues, and avoid miscalculation.” / Meanwhile, Andrew Erickson posted a quick read of the latest Pentagon report on China.

ANALYSIS: The present U.S. FON operation took place amid heightened attention due to speculation that the tribunal in the Philippine arbitration case under UNCLOS could release its award in the near future, and due to reports that an earlier FON operation had been cancelled or postponed. While proponents of these military demonstrations of legal positions have argued for regular operations to reduce the spectacle surrounding each individual action, no perception that the operations are “routine” has set in. The Chinese government can easily prevent the voyages from being seen as routine by interpreting each one as cause for increased deployments. From the standpoint of international law, the argument for FON operations is well developed if not undisputed. The present situation is not merely a legal disagreement, however. It is also a potential crisis point and a testing ground of much broader strategic questions. U.S. FON operations are at least as consequential in military-strategic signaling as they are legally, and their broader purpose and messaging are subject to little public debate in the United States. Even accepting the argument that the U.S. objective is to stand on principle about international law, the question of broader interests and consequences deserves urgent attention.

CYBERSPACE
U.S.–China cyberspace ‘experts group,’ announced in September, holds first meeting

One of the less-recognized announcements from President Xi Jinping’s trip to Washington in September 2015 was a commitment to create a “senior experts group” to augment U.S.–China cooperation “to further identify and promote appropriate norms of state behavior in cyberspace within the international community.” At the first meeting this week, the State Department reported, “Mr. Christopher Painter, Coordinator for Cyber Issues, U.S. Department of State, led the U.S. government delegation that included other representatives from the Department of State, Department of Defense, Department of Justice, Department of Homeland Security and other agencies. Mr. Wang Qun, Director-General of the Department of Arms Control, Ministry of Foreign Affairs, led the delegation from China. He was accompanied by representatives from the Ministry of Foreign Affairs, the Ministry of National Defense, the Cyberspace Administration of China, the Ministry of Industry and Information Technology, Ministry of Public Security, and others.” A Foreign Ministry spokesperson said the meeting was about “international rules for cyberspace” and said “we … stand ready to turn cyber security cooperation into a new bright spot of bilateral relations.” The next meeting is to take place in six months. / Wang Qun, the Chinese delegation lead, published an op-ed for the occasion in The World Post, identifying “common challenges,” including “individual privacy and cyber-enabled theft of intellectual property,” “cyber terrorism” including recruitment functions, and attacks on “national critical infrastructure.”

ANALYSIS: Cyberspace is an area of substantive disagreement between the two governments, competition between business interests and between visions of the political role of information technology, and immense common interests in maintaining security and stability. While jockeying will continue, the signals following the September statements on cyberspace suggest that the U.S. and Chinese governments are increasingly able to view the online domain as a place, like so many others, where elements of competition and cooperation are likely to coexist. As we saw with climate policy, U.S.–China cooperation on rules and norms for cyberspace has the potential to lead to broader international breakthroughs; though just as with the climate, it won’t be easy.

TRADE AND INVESTMENT
State-owned enterprises and ‘sovereign immunity’; Anatomy of a $2 billion paper investment; Playing chicken at WTO

Reuters’ Matthew Miller and Michael Martina have an interesting story on Chinesestate entities claiming sovereign immunity from various U.S. legal processes. It covers several issues and notes, “China’s Foreign Ministry in October complained to the U.S. government over attempts by plaintiff lawyers to serve the drywall lawsuit on the State-owned Assets Supervision and Administration Commission (SASAC) … The ministry argued in a diplomatic note that U.S. courts have no jurisdiction over suits against a country’s ‘state-owned properties.'” / The Paulson Institute released a new case study of a $2 billion investment announced in 2014 by Chinese paper company Tranlin to build a facility in Virginia. / And the Obama administration brought a new WTO challenge to Chinese anti-dumping duties on U.S. “broiler chicken products.”

#USChinaWeek1966 <— follow this hashtag on Twitter for more
Early hints of the phrase ‘Cultural Revolution’ in U.S. press

May 16, 1966, is traditionally regarded as the beginning of the Great Proletarian Cultural Revolution in China, and there are numerous explorations of that history published to coincide with the 50th anniversary. No surprise, the date was not marked with special fanfare in U.S. press, but the phrase “cultural revolution” was already making its way to readers of The New York Times. On May 5, NYT ran a front page story under the headline “Peking Presses Cultural Purge; Army Joins in Call for Vigilance” that read in part: “Hsinhua also distributed the text of a speech made Saturday in Peking by Premier Chou En-lai in which he stated: ‘A Socialist cultural revolution of great historical significance is being launched in our country. This is a fierce and protracted struggle as to who will win, the proletariat or bourgeoisie in the ideological field.'” A May 10 NYT report on “a struggle within the Chinese Communist party” noted wording from three Beijing newspapers: “They made their self-criticism as Jenmin Jih Pao, the chief party daily, threw its authoritative support behind the attackers, Jeifanjun Pao, the army newspaper, and Kwangming Jih Pao, the intellectuals’ newspaper. A joint statement published by one of the three offending Peking papers on behalf of them all asserted: ‘We beg to accept these criticisms and would earnestly welcome it if the broad masses of newspapers and periodicals throughout the country made all-out criticisms of our wrongdoings.’ They declared that they would resolutely correct their errors, return to a proletarian stand and ‘participate in the great socialist cultural revolution,’ Peking’s term for its campaign against wayward intellectuals.”

(This entry is part of a new feature of U.S.–China Week, following 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].

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