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Indo-Asia-Pacific

A Sign of the Times: China’s Recent Actions and the Undermining of Global Rules, Pt. 3

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By Tuan N. Pham

Last March, CIMSEC published an article titled “A Sign of the Times: China’s Recent Actions and the Undermining of Global Rules, Part 1” highlighting three troubling developments that oblige the United States to further encourage and challenge China to become a more responsible global stakeholder that contributes positively to the international system. The article noted Beijing is trying to convince others to accept the self-aggrandizing and self-serving term of “near-arctic state”; to fulfill its nationalistic promise to the Chinese people and reclaim the disputed and contested South China Sea (SCS) from ancient times; and to expand its “sharp power” activities across the globe.

A month later, CIMSEC published a follow-on article underscoring that these undertakings continue to mature and advance apace. The article featured China possibly considering legislation to seemingly protect the fragile environment in Antarctica, but really to safeguard its growing interests in the southernmost continent; taking more active measures to reassert and preserve respectively its perceived sovereignty and territorial integrity in the SCS; and restructuring its public diplomacy (and influence operations) apparatuses to better convey Beijing’s strategic message and to better shape public opinion abroad. At the end of the article, the author commented that although the United States made progress last year calling out wayward and untoward Chinese behavior by pushing back on Chinese unilateralism and assertiveness, strengthening regional alliances and partnerships, increasing regional presence, reasserting regional influence, and most importantly, incrementally reversing years of ill-advised accommodation; there is still more America can do.

The following article lays out previously recommended ways and means that Washington can impose strategic costs to Beijing and regain and maintain the strategic initiative. Providentially, the Trump Administration has implemented many of them, but the real challenge remains in sustaining the efforts and making the costs enduring. Otherwise, Beijing will just wait out the current administration in the hopes that the next one will advance more favorable foreign policies. Alternatively, they could also step up their “sharp power” activities to influence extant U.S. foreign policies and/or undermine the current U.S. administration’s political agenda and diminish its re-election prospect in 2020.         

What America Can Do in the Indo-Pacific

 The new National Security Strategy and National Defense Strategy call for embracing strategic great powers competition with rising China. They both make the case that when two powers, one dominant (United States) and one rising (China), with competing regional and global strategies extend into one’s another security and economic spheres, the geopolitical landscape is ripe for friction. However, this competition is not to be feared but to be expected and embraced. America must challenge China’s rise if it continues to not be peaceful and undermines the global rules that provide global peace and prosperity for all.  

China will likely remain the economic partner of choice for the Indo-Pacific, while the United States will likely remain the security partner of choice. As this China-U.S. competition grows and intensifies, balancing these complex and dynamic relationships will become increasingly challenging as regional countries feel greater pressures to choose sides. The U.S. should continue to pursue stronger regional security ties and strive to be a more dependable and enduring partner in terms of policy constancy, resolve, and commitment. Strengthening old alliances and partnerships, and forging new ones with Hanoi, New Delhi, and others will be beneficial.  

The “most effective counterbalance” to China’s campaign of tailored coercion against its weaker neighbors will still be U.S. persistent presence and attention (and focus) in the form of integrated and calibrated soft and hard deterrent powers – multilateral diplomacy, information dominance, military presence, and economic integration. 

The “most promising and enduring check” to China’s expansive regional and global ambitions will still be economic integration. The U.S. should move forward on more bilateral trade agreements; support the emerging Trans-Pacific Partnership-11 (TPP-11) initiative; and/or reconsider bringing back the TPP itself to bind the United States to the other regional economies, guarantee an international trading system with higher standards, and complement the other instruments of national power. Otherwise, Washington may inadvertently drive the Indo-Pacific nations toward other economic alternatives like the China-led Regional Comprehensive Economic Partnership, Asian Infrastructure Investment Bank, and Belt and Road Initiative. 

China is a signatory of the United Nations Convention on the Law of the Sea (UNCLOS) but often violates its provisions, whereas the United States has not ratified UNCLOS but has been its foremost champion on behalf of freedom of navigation, global commerce, and international rule of law. The U.S. should consider ratifying UNCLOS if challenges are going to have more gravitas and be taken more seriously by the international community, otherwise, the status quo simply strengthens Beijing’s ability to call into question Washington’s sincerity to international norms.

The U.S. must keep reframing and countering when appropriate the narratives that China pushes with accusations of American containment and hypocrisy while promoting a perception of  China’s global benevolence and benign rise. Washington’s message is more often than not reactive and defensive, not synchronized, or sometimes nothing at all. The U.S. can seize the messaging initiative like during the 2017 Shangri La Dialogue with the keynote speech by Australian Prime Minister Turnbull, remarks by American Secretary of Defense Mattis during the first plenary session (United States and Asia-Pacific Security), and comments by former Japanese Minister of Defense Inada during the second plenary session (Upholding the Rules-based Regional Order). The U.S. can continue to acknowledge that both countries have competing visions, highlight the flawed thinking of Beijing’s approach, champion its own approach as the better choice, and call out wayward and untoward Chinese behavior when warranted. This can include China’s expansive polar ambitions, intrusive sharp power activities, and destabilizing SCS militarization, but the U.S. should also give credit or commend when appropriate, such as China’s economic sanctions against North Korea. The U.S. cannot euphemize in its messaging, and whenever possible, should synchronize communication throughout the whole-of-government and international partners while reiterating at every opportunity. There can be no U.S. policy seams or diplomatic space for China to exploit.

The U.S. must take each opportunity to counter China’s public diplomacy point-for-point, and keep repeating stated U.S. diplomatic positions to unambiguously convey U.S. national interests and values such as:

  • The United States supports the principle that disputes between countries, including disputes in the ECS and SCS, should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law.
  • The United States supports the principle of freedom of navigation, meaning the rights, freedoms, and uses of the sea and airspace guaranteed to all nations in international law. United States opposes claims that impinge on the rights, freedoms, and lawful uses of the sea that belong to all nations. United States takes no position on competing claims to sovereignty over disputed land features in the East China Sea (ECS) and SCS.
  • Claims of territorial waters and economic exclusive zones (EEZ) should be consistent with customary international law of the sea and must therefore, among other things, derive from land features. Claims that are not derived from land features are fundamentally flawed.
  • Parties should avoid taking provocative or unilateral actions that disrupt the status quo or jeopardize peace and security. United States does not believe that large-scale land reclamation with the intent to militarize outposts on disputed land features is consistent with the region’s desire for peace and stability.
  • United States, like most other countries, believes that coastal states under UNCLOS have the right to regulate economic activities in their EEZ, but do not have the right to regulate foreign military activities in their EEZ.
  • Military surveillance flights in international airspace above another country’s EEZ are lawful under international law, and the United States plans to continue conducting these flights as it has in the past. Other countries are free to do the same.

What America Can Do in the SCS

Since the start of 2018, China appears embarked on a calculated campaign to determinedly reassert and preserve its perceived sovereignty and territorial integrity in the SCS through words and deeds. Beijing believes that sharp and emphatic “grey zone” operations and activities will once again compel Washington to back down in the SCS. Washington did little when Beijing illegally seized Scarborough Shoal in 2012; brazenly reclaimed over 3200 acres of land over the next five years despite a 2002 agreement with the ASEAN not to change any geographic features in the SCS; barefacedly broke the 2015 agreement between Xi Jinping and Barack Obama to not militarize these Chinese-occupied geographic features; and blatantly disregarded the landmark 2016 Arbitral Tribunal ruling.          

The U.S. can continue to reframe the SCS as a strategic problem (and not a regional issue) that directly involves the United States and obliges China to act accordingly. Explicitly conveying to Beijing that the SCS is a U.S. national interest and making the SCS a “bilateral” U.S.-China issue may induce Beijing to rethink and recalibrate its revisionist strategy. The U.S. can turn the tables and make Beijing decides which is more important to its national interests – the SCS or its strategic relationship with Washington (trade, military-military, etc.). Stay firm and consistent to stated SCS positions :

  • No additional island-building and no further militarization
  • No use of force or coercion by any of the claimants to resolve sovereignty disputes or change the status-quo of disputed SCS features
  • Substantive and legally binding Code of Conduct that would promote a rules-based framework for managing and regulating the behavior of relevant countries in the SCS and permissibility of military activities in the EEZ in accordance with UNCLOS.

Otherwise, deferring to Beijing on aforesaid issues will only reinforce the perception in Beijing that Washington can be influenced and maneuvered with little effort.

Beijing undermined the International Tribunal for the Law of the Sea by drawing red lines around the reclaimed and disputed geographic features. Washington and the international community must therefore buttress the Tribunal’s authority and legitimacy through words and deeds. There is value in continuing to challenge Beijing’s excessive and contested maritime claims in the SCS through a deliberate, calibrated, and enhanced campaign of presence operations – transits, exercises, and freedom of navigation operations (FONOP). Otherwise, failing to conduct these routine operations in the aftermath of the landmark 2016 ruling, particularly FONOPs, sends the wrong strategic signal and further emboldens Beijing to continue its brazen and destabilizing militarization of the SCS. Combined, multi-national exercises can underscore the universal maritime right of all nations to fly, sail, and operate wherever international law permits.

China pursues a very broad, long-term maritime strategy and will view any perceived U.S. force posture reduction as a reward (tacit acknowledgement and consent) for its unilateral rejection of the Tribunal ruling, a win for its strategy and preferred security framework, and another opportunity to reset the regional norms in its favor. Reduction may also increase Beijing’s confidence in its ability to shape and influence Washington’s decisions and encourage China to press the United States for additional concessions, in return for vague and passing promises of “restraint.”

Although Manila and Washington did not capitalize on the hard-fought legal victory over China’s excessive and contested maritime claims in the SCS, it is still not too late to do so. The U.S. can encourage and support Hanoi, Kuala Lumpur, and other Association of Southeast Asian Nations (ASEAN) countries to put additional pressures such as legal challenges, public diplomacy, and collective maritime activities on Beijing to curb its assertiveness and unilateralism, stop its land reclamation and militarization activities, and come in good faith to the multilateral (not bilateral) negotiating table for a peaceful and enduring resolution of the competing and contested maritime claims.

Now is Not the Time to Back Down in the SCS

All told, years of American acquiescence and accommodation may have “unintentionally and transitorily” eroded international rule of law and global norms while diminishing the regional trust and confidence in U.S. preeminence. Furthermore, this accommodation may have weakened some of the U.S. regional alliances and partnerships, undermined Washington’s traditional role as the guarantor of the global economy and provider of regional security. These accommodations have accelerated the pace of China’s deliberate march toward regional preeminence and ultimately global preeminence.

So, as to not further give ground to Beijing in the strategic waterway, Washington cannot back down now in the SCS. To do so would further embolden Beijing to expand and accelerate its deliberate campaign to control the disputed and contested strategic waterway through which trillions of dollars of global trade flows each year and reinforce Beijing’s growing belief in itself as an unstoppable rising power and Washington as an inevitable declining power that can be intimidated out of the SCS and perhaps eventually the greater Indo-Pacific in accordance with its grand strategic design for national rejuvenation (the Chinese Dream). For Beijing, controlling the SCS is a step toward regional preeminence and eventually global preeminence.      

Conclusion

Beijing’s strategic actions and activities are unwisely and dangerously undermining the current global order that it itself has benefited from. Hence, Washington has a moral and global  obligation of leadership to further encourage and challenge China to become a more responsible global stakeholder that contributes positively to the international system. Otherwise, Beijing will continue to view U.S. acquiescence and accommodation as tacit acknowledgement and consent to execute its strategic ambitions and strategies unhindered and unchallenged. The U.S. window of opportunity to regain and maintain the strategic high ground and initiative will not remain open forever.

Tuan Pham serves on the executive committee of the Yokosuka Council on Asia-Pacific Studies and is widely published in national security affairs and international relations. The views expressed therein are his own and do not reflect the official policy or position of the U.S. Government.

Featured Image: Chinese dragon statute (Wikimedia Commons)

Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea arbitration: Beijing puts forward her own views Part Two

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By Alex Calvo

This is the second installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document. Read Part One.

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Putting the cart before the horse? China argues delimitation of land territories must come first. The text affirms (6) that “Since the 1970s, the Philippines has illegally occupied a number of maritime features of China’s Nansha Islands, including Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao. Furthermore, it unlawfully designated a so-called ‘Kalayaan Island Group’ to encompass some of the maritime features of China’s Nansha Islands and claimed sovereignty over them, together with adjacent but vast maritime areas,” claiming sovereignty “over Huangyan Dao of China’s Zhongsha Islands and illegally explored and exploited the resources on those maritime features and in the adjacent maritime areas,” and (10) argues that in any case it is not possible to rule “on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention” until “the extent of China’s territorial sovereignty in the South China Sea” has been determined.

This argument is central to China’s case, being the opposite of one of the pillars of Manila’s arbitration bid, namely that it only concerns the extent and manner that rights are exercised, rather than territorial delimitation, which is out of bounds to the court due to Beijing’s derogation (that is, opt out from that aspect of the convention, meaning that compulsory arbitration does not extend to territoria delimination in the case of China), which Manila acknowledges. To press the issue further, Beijing cites the ICJ, (11) pointing out that “the land dominates the sea.” That is, it argues that one cannot discuss whether the sea is being used in accordance with UNCLOS before a full determination of a country’s land territory has been made, a determination not open to the Permanent Court of Arbitration without Beijing’s consent. The text calls (14) Manila’s attempt to examine the former “contrived packaging” which “fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.” Another, less aggressive, term employed by the text (18) to press home the same point is “putting the cart before the horse.” To support this view, the document argues (18) that there is no precedent “in relevant cases” of any “international judicial or arbitral body” having “ever applied the Convention to determine the maritime rights derived from a maritime feature before sovereignty over that feature is decided.” While international tribunals like the PAC are not, formally speaking, bound to the doctrine of precedent (stare decisis), they do tend to follow previous rulings. However, there have not been a large number of cases, much less a coherent set of rulings, on this issue. Therefore, we may say that there is simply no consistent body of case law on whether it is possible to examine compliance with UNCLOS of a country’s practice at sea in advance of territorial determination.

“China claims reclamation work in the South China Sea is in accordance with international law.”
“China claims reclamation work in the South China Sea is in accordance with international law.”

Appropriation of low-tide elevations: Beijing argues not up to interpretation of UNCLOS. Concerning the “low-tide elevations” that Manila claims to be such and has included in its arbitration bid, saying that they cannot be appropriated, China’s document (23 and 24) argues that “whether or not” they “can be appropriated is plainly a question of territorial sovereignty.” Formerly often referred to as “drying rocks” or “banks,” UNCLOS defines “low-tide elevations” as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.” The Chinese paper states that it “will not comment” on whether they are “indeed low-tide elevations,” while pointing out that “whatever nature those features possess, the Philippines itself has persisted in claiming sovereignty over them since the 1970s,” citing “Presidential Decree No. 1596, promulgated on 11 June 1978” whereby Manila “made known its unlawful claim to sovereignty over some maritime features in the Nansha Islands including the aforementioned features, together with the adjacent but vast areas of waters, sea-bed, subsoil, continental margin and superjacent airspace, and constituted the vast area as a new municipality of the province of Palawan, entitled ‘Kalayaan.’” China’s position paper cites later Filipino legislation, arguing that while pretending to adjust claims to UNCLOS it does “not vary the territorial claim of the Philippines to the relevant maritime features, including those it alleged in this arbitration as low-tide elevations.” The text accuses Manila of contradicting herself by first asserting in “Note Verbale No. 000228, addressed to Secretary-General of the United Nations on 5 April 2011” that “the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines,” the KIG including among others “the very features it now labels as low-tide elevations,” with the “only motive” being to deny them to China and “place them under Philippine sovereignty.” Furthermore, the position paper argues (25) that UNCLOS “is silent on this issue of appropriation” of low-tide features, citing the ICJ in the 2001 Qatar v. Bahrain ruling, where it stated that “International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory.’ Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations.” The text also cites a later 2012 ICJ case, the “Territorial and Maritime Dispute (Nicaragua v. Colombia),” where it stated that “low-tide elevations cannot be appropriated” but argues that the Court “did not point to any legal basis for this conclusory statement. Nor did it touch upon the legal status of low-tide elevations as components of an archipelago, or sovereignty or claims of sovereignty that may have long existed over such features in a particular maritime area,” adding that “the ICJ did not apply the Convention in that case.” Therefore, China’s position paper argues, “Whether or not low-tide elevations can be appropriated is not a question concerning the interpretation or application of the Convention.”

Taiwan: lurking on the background. Taiwan and the “One-China Principle” are not absent from China’s document either, the text (22) accusing Manila of committing a “grave violation” of the principle for omitting Taiping Dao (Island) from the list of “maritime features” described as “occupied or controlled by China.” Instead, the text describes it as being “currently controlled by the Taiwan authorities of China.” This is a reminder that the conflict over the South China Sea is connected with that over Taiwan, in a number of ways. We may ask ourselves whether Manila was departing here from her “One-China Policy.” Was this a warning shot, or merely another example of how state practice concerning Taiwan is moving (sometimes inadvertently) away from Beijing’s strict position in many countries.

The burning question of freedom of navigation and overflight. Given the current controversy over FON (Freedom of Navigation) operations by the US Navy, along or together with partners and allies, close to China’s artificial islands in the South China Sea, this is an aspect of Beijing’s paper of great interest to observers. Concerning this, section 28 stresses that “China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.” While this is in line with repeated assertions by Chinese authorities, it prompts further doubts on the exact nature of Beijing’s claims, in the sense that if all it was demanding was an EEZ then freedom of navigation and overflight would simply flow from international law, without the need for any concession by the coastal state. The issue is made more complex by the fact that in Beijing’s view the rights of coastal states are more extensive than in the eyes of countries such as the United States, going as far as including the right to authorize or deny military activities such as electronic intelligence gathering, which has been the source of a number of incidents, some of them fatal. Thus, if what China is claiming is an EEZ, is Beijing making a concession and accepting a lesser set of coastal state rights in the particular case of the South China Sea? Alternatively, should we read “freedom of navigation and overflight” as being restricted to civilian ships and planes, or at least not including any activities such as ELINT (electronic intelligence) gathering, prejudicial to the coastal state? Other questions may be prompted by China’s assertion. For example, does this also apply to territorial waters around Chinese islands in the South China Sea? A question made more complex by the fact that there is no agreement over which islands are islands there, in particular given the extensive reclamation work taking place.

Read the next installment here. 

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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Asia-Pacific, Current Operations

Can’t Anybody Play This Game? US FON Operations and Law of the Sea

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This article originally featured on Lawfare. It may be read in its original form here. 

By Raul “Pete” Pedrozo and James Kraska

The United States has been unable to synchronize successful air and sea freedom of navigation (FON) operations in the South China Sea with an erratic diplomatic message and a legal case that is too clever by half. Our colleagues Bonnie Glaser and Peter Dutton tried to reconnect these dimensions when they wrote in the The National Interest that while the administration has not done a “stellar job of explaining its actions,” the U.S. approach was still a sophisticated signaling mechanism. But their laudable effort to square the circle is not supported by the law of the sea.

Here’s why.

The past two FON operations in the South China Sea – the USS Lassen (DDG 82) surface navigation on October 27 and the flight of B-52s on November 8-9 – are models in how to squander flawless operational execution with confused, inconsistent, and ultimately damaging messaging that in some ways left the United States in a worse position than it would have been had it not done the operations.

After more than a month of dithering, the United States ordered the USS Lassen to challenge something – many are still unsure what – in the South China Sea. Some American officials characterized the operation as “innocent passage,” while others described it as “not innocent passage.” As confusion over the true nature of the FON challenge mounted, Senator John McCain requested the Department of Defense to “publicly clarify…the legal intent behind this operation.” Just days later, the U.S. did it again. Air Force B-52 bombers from Guam overflew the South China Sea. A U.S. official told The Hill that the aircraft did fly within 12 nm of China’s artificial islands, whereas another U.S. official said it did not. The confusion in both cases appears to be a mixture of politics combined with a lack of understanding of the law of the sea, presenting the United States with two unforced errors that should not be repeated.  

The legal implications of the Lassen operation are inexplicable to this day. The Lassen could not have transited near Subi Reef in innocent passage because the feature is a low-tide elevation (LTE) that does not generate a territorial sea. High seas freedoms apply around low-tide elevations. Although Subi Reef is a an LTE, it is located within 12 nautical miles (nm) of Sandy Cay, an uninhabited rock that is entitled to a 12 nm territorial sea. Under article 13 of UNCLOS, an LTE located within the 12 nm territorial sea of a “mainland or island” may generate a territorial sea as though it were itself a rock. Accordingly, Glaser and Dutton conclude that Subi Reef was used “as a baseline to ‘bump out’ the territorial sea” of Sandy Cay. Under this theory, the USS Lassen was compelled by law to transit the territorial sea of Sandy Cay/Subi Reef in innocent passage.

There are four reasons why this rationale is unsupported by the law of the sea. First, article 13 of UNCLOS clearly states that an LTE within 12 nm of a “mainland or island” may extend out the territorial sea of the primary feature as though it were a rock. This is called a “parasitic” LTE, since its territorial sea depends on an adjacent mainland or island. But Sandy Cay is neither a mainland nor an island – it is a rock, so it may not be used by Subi Reef to generate a territorial sea.

Our colleagues appear to suggest that “mainland or island” includes mere rocks – that islands are just a form of rock. This argument confuses the text in Article 121 on the regime of islands, which forms Part VIII of the Convention and addresses what features are entitled to an exclusive economic zone (EEZ) with the rules in Part II on the territorial sea. Islands are naturally formed areas above water at high tide [Article 121(1)]. Islands are entitled to the full suit of zones of sovereignty, sovereign rights, and jurisdiction [Article 121(2)]. All that Article 121(3) says is that “rocks which cannot sustain human habitation or an economic life of their own” are not entitled to an EEZ or continental shelf. This text does not mean that islands are simply a type of rock – they are not and to make this argument is a circular reading that defies the negotiating history of the convention that sought to distinguish rocks from islands, as well as common sense that would have the two distinct words imbued with two discrete meanings.

Furthermore, the feature of one country cannot be used to generate maritime entitlements for a feature of another country. The only way for Subi Reef to be a parasitic LTE and have a territorial sea generated from Sandy Cay’s territorial sea is if the same country has lawful sovereign title to both features. Is the United States ceding both features to China?

Second, perhaps more fundamentally, no feature in the Spratly Islands, including Subi Reef, has a territorial sea. None. UNCLOS Article 3 allows states to “establish” a territorial sea – it is not automatic. Neither China nor any other claimant has established a territorial sea around a feature in the Spratly Islands. The law of the sea requires affirmative action by a sovereign state – China has not done so, so why does the United States appear to recognize (and therefore encourage) such action? There is no territorial sea around Subi or any other Chinese occupied feature, and therefore no purported requirement in Chinese law for prior consent of transit for the Lassen to challenge. Whether U.S. ships or aircraft stay beyond or transit within 12 nm of any these features is legally immaterial – none of them have a territorial sea.

Third, in order for a rock to generate a territorial sea it must be under the sovereignty of a coastal state. The United States does not recognize any country as having sovereignty over the features occupied or claimed by China, and in fact China has the weakest claim to the features of any nation in the region. No country recognizes China’s claim of sovereignty over any Spratly feature. Consequently, even if China declared a territorial sea around one or more feature, which it has not, the declaration would be legally nugatory. It would be the same as the United States declaring a territorial sea around Antarctica – no other state would recognize it. So why does the United States appear to recognize Chinese sovereignty over any of these features by trying to challenge provisions of Chinese law that even China has refrained from imposing?

Fourth, Glaser and Dutton suggest the Lassen challenged China’s law that purports to require prior notification for innocent passage in its territorial sea. Yet the operation appears to have been leaked to the media by a U.S. official the day before it was conducted, giving de facto notice – probably in a vain effort to “reduce tension” over the transit. That move undermined the U.S. legal case and created operational risk. It was not a coincidence that China’s maritime militia was already in position to harass the Lassen when the U.S. warship approached Subi Reef – potentially placing the security of the mission and the lives of U.S. Sailors at risk.

So did the FON operations challenge anything at all? Yes, but not what the United States or outside observers have claimed. Both the Lassen and the B-52s challenged China’s ubiquitous nine-dashed line claim to “indisputable sovereignty” over the South China Sea. Of course nobody, including our interlocutors in Beijing, have any idea what China’s preposterous claims mean in terms of the law of the sea. The difficulty in trying to fit U.S. FON operations into the prism of the law of the sea – combined with a lack of understanding of the law of the sea – has driven U.S. officials and pundits bananas. This falls into the trap laid by China, which has, at least since 1995, intentionally used confusion and ambiguity over its maritime claims in the South China Sea as a strategic weapon. It would be far better for the United States to continue to operate freely, persistently, and without the hand-wringing and drama, with ships on the surface, submarines under the water, and aircraft in overflight of the South China Sea, within and beyond 12 nm of all the features in the region.  

Raul “Pete” Pedrozo is Deputy General Counsel for the Defense POW/MIA Accounting Agency (DPAA). Previously he was a Professor of International Law in the Stockton Center for the Study of International Law at the U.S. Naval War College, where he now serves as a Non-Resident Scholar.

James Kraska is Howard S. Levie Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow at the Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law.

Asia-Pacific, Territorial and Law of the Sea Disputes

South China Sea: FONOPS Not Enough, Time for Boots on the Ground, Active Neutrality

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By Alex Calvo

After a long wait, the US Navy resumed FON (Freedom of Navigation) operations in the South China Sea (last carried out in 2012) on 27 October, with USS Lassen sailing within 12 nautical miles of Subi and Mischief Reefs, and conducting actions incompatible with innocent passage, in order to make it clear Washington does not recognize any territorial waters arising from the artificial islands built by Beijing through reclamation on low-tide elevations. On the other hand, in line with long-standing American policy, the US also emphasized that it was not taking sides concerning the underlying territorial disputes, and that freedom of navigation operations were aimed at any excessive maritime claims, underlining this by also sailing through waters around features claimed by Vietnam and the Philippines. Commentary has focused on the need for further FON cruises, and on China’s response, including the possibility of Beijing declaring an ADIZ (Air Defense Identification Zone).

Freedom of Navigation is indeed one of the pillars of both the post-war open economic system drawn up during the Second World War, and of the traditional American reliance on the ability to move troops by sea (in line with the British Empire, and its tandem Royal Navy – Indian Army). Therefore, contesting Chinese maritime claims is indeed an important policy goal, and furthermore one that should be shared by other maritime democracies. However, we must ask ourselves whether this is all. Furthermore, the time may have come to consider whether agnosticism on territorial claims is a sustainable policy, and whether the US can afford to see allies like the Philippines lose further territory to the PRC.

Even if FON operations become a regular feature and China’s extensive reclamation work turns out to pose no obstacle to peace-time navigation by merchantmen and warships, we would be fooling ourselves if we thought that there is no price to pay for failing to confront Beijing. First of all, an extensive network of man-made islands could make it much more difficult to operate in the region in the event of hostilities. Second, by condoning the violent taking of contested territories, the principles enshrined in the UN charter and in UNSC Resolution 502 would risk becoming irrelevant.

Concerning the latter, being neutral concerning territorial disputes can be interpreted in two ways. Up to now in the South China Sea it has meant Washington not supporting any competing claims. However, this is no longer enough. The Philippines’ marines have been making a heroic stand at BRP Sierra Madre, guarding Second Thomas Shoal (Ayungin Shoal / Ren’Ai Jiao) while surrounded by hostile ships bent on preventing their resupply. However, given the much larger forces available to China, this strategy may not be sustainable. Furthermore, despite an existing mutual defense treaty and growing capacity building assistance (also provided by Japan), Washington has de facto been signaling Beijing that the occupation of the Second Thomas Shoal would not be considered an attack on Filipino territory. This increases the risk of a miscalculation, should China come to believe that the US will stand on the sidelines in such an scenario. Mutual defense treaties are not of much use if restricted in their geographical scope.

An alternative policy would be to embed USMC personnel in their Filipino counterparts, while explicitly announcing that despite still not taking sides on the ultimate issue of sovereignty, the US considered the Second Thomas Shoal (and other disputed territories currently under actual control by Manila) to fall within the purview of the US-Philippines Mutual Defense Treaty. American policy would then be to actively seek to prevent changes on the ground, including expelling Filipino military personnel from the Second Thomas Shoal, while still pressing for a mediated (or arbitrated) solution, in line with US support for the international arbitration bid currently under consideration by the Permanent Court of Arbitration. Preserving the status quo requires extensive work on the BRP Sierra Madre, or its replacement by another ship or structure. In other words, America would be moving from passive neutrality to active neutrality. From merely declaring that differences must be settled peacefully in accordance to international law, to helping freeze the status quo so that revisionist powers are not tempted to gain in the field of battle what they should only be claiming in the diplomatic table or the courtroom.

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A precedent for this are Japan’s Senkaku Islands, also claimed by China and Taiwan. After some doubts and conflicting reports on whether the US-Japan Security Treaty extended to them, Washington explicitly announced that they did, while remaining non-committal about ultimate sovereignty. Japan, having greater maritime and naval capabilities than the Philippines, employs a different strategy to protects the islands, shielded by the country’s coastguard without any permanent ground deployment. Should Tokyo decide, or be forced, to permanently deploy some ground troops, it would also be positive to see USMC personnel embedded in them. We could also mention the occupation of Iceland during the Second World War, before Pearl Harbor.

Being neutral in a territorial dispute does not just mean supporting its peaceful resolution in accordance with international law. That is only the case when all sides involved renounce the use of force. When one refuses to take this step, and regularly resorts to it, notwithstanding the fact it is mostly of the non-lethal kind, the only alternative to appeasement is active neutrality, meaning a deployment designed to provide a tripwire, lessening the risks of miscalculation and signaling that aggression will not be condoned. Only this can provide the necessary incentives for a future peaceful resolution of the conflict, where Washington would indeed be neutral concerning its outcome, yet having avoided neutrality regarding how it came about.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.