This backgrounder updates an earlier note on the legal issues raised by China’s expansionist maritime activities in the South China Sea. Since our last backgrounder in September 2015, tensions between China and the U.S., already serious, have risen even more.
U.S. Freedom of Navigation Patrols and China’s Response
Since our last backgrounder, the U.S. Navy has conducted two “freedom of navigation” operations (“FONOPs”) in the South China Sea. In October 2015, the destroyer USS Lassen sailed within 12 nautical miles of Subi Reef, a land feature in the Spratly Island group on which China had constructed an artificial island. The maritime rights surrounding Subi Reef are claimed by Taiwan, China, and Vietnam. In January 2016, the destroyer USS Curtis Wilbur sailed within 12 nautical miles of the Triton Island in the Paracel Islands. Triton is the subject of competing claims among China, Taiwan, and Vietnam.
Both FONOPs were conducted under the rules of “innocent passage.” This meant that the ships shut off their weapons systems while within 12 nautical miles. The upshot is that because these FONOPs were conducted under the rules of “innocent passage” rather than normal operational conditions, they did not challenge China’s claims to the land features themselves or China’s artificial island building. Instead, they were intended merely to demonstrate that warships are not required to give notification or seek permission before conducting an innocent passage through another country’s territorial waters.
Despite these modest aims, the Chinese government vigorously protested both operations, denouncing each as a violation of Chinese law and a “provocation” to Chinese sovereignty. Chinese state media has also repeatedly accused the U.S. of “hyping” conflicts in the region. Some intemperate Chinese military officers have threatened military actions against offending U.S. naval vessels. It appears, however, that during the actual operations, the Chinese Navy made verbal demands but did not take any threatening or harassing actions.
Recent media reports indicate the U.S. Navy is planning a third FONOP in the region, but that the White House and the U.S. Navy are at odds on how aggressively to proceed. The October FONOP appeared timed to occur after Chinese President Xi Jinping’s state visit to the U.S. The next FONOP appears to have been delayed until after the recent Nuclear Security Summit, which also featured a visit from President Xi. Admiral Harris, the commander of U.S. Pacific Command, has made numerous critical public comments about Chinese activities in South China Sea. A recent report suggest the White House had placed a “gag order” on him until last week’s meeting with President Xi.
The United States should continue conducting FONOPs in the region. Such FONOPs should be conducted in a way that makes clear that the U.S. does not accept Chinese claims that artificial islands, reefs, or other land features can generate maritime rights under UNCLOS. These operations should include FONOPs which do not follow innocent passage requirements. Such FONOPs should be conducted more regularly, and with less media buildup, so that it becomes a more regularized and accepted procedure in the region.
The China-Philippines Arbitration
In October, an arbitral tribunal in The Hague issued a preliminary decision in a case brought by the Philippines against China to challenge China’s claims in the South China Sea. The tribunal, formed under the United Nations Convention for the Law of the Sea, unanimously found that most of the Philippines’ claims could proceed to a final decision. China has refused to participate in the case but released a detailed paper explaining its positions.
The tribunal’s reasoning was complex, but its key findings are as follows: first, the tribunal held that the case can proceed even though China refuses to participate. Second, it rejected outright China’s claims that various international agreements and declarations by the parties barred the arbitration. Third, it reserved judgment on whether it can decide several of the key claims in the case, including China’s maritime claims based on the notorious “Nine-Dash Line” that encompasses virtually the entire South China Sea.
The Tribunal’s final decision is expected this spring. It is likely that the Tribunal will decide in favor of the Philippines on several, if not most, of its claims. China continues to reject the Tribunal’s jurisdiction and has already signaled that it will not comply with the award. But UNCLOS makes clear that China is legally bound by whatever ruling the Tribunal makes, so China’s defiance will be a clear breach of its legal obligations. UNCLOS contains no enforcement mechanisms, however, so the Philippines can only hope that a positive award will bolster its position in the region and in the international community.
The U.S. should encourage China to live up to its commitments under UNCLOS. The U.S., however, should avoid taking the lead on this issue since it has not joined UNCLOS and has occasionally taken issue with international court judgments in the past. It should instead quietly encourage other parties to UNCLOS to call for China to comply with the award.
China Fuels Increased Tensions
China’s hand in the South China Sea is looking more and more like a fist. Recently, China has sought to boost its military leverage in the South China Sea by increasing its military capabilities in the Paracel Islands, enhancing its military-support infrastructure in the Spratlys, and eyeing further opportunities in vulnerable places like the Scarborough Shoal.
The most threatening development for the United States is China’s deployment of HQ-9 anti-aircraft missiles and fighter planes to Woody Island, one of the islands in the Paracel chain. The HQ-9 can strike targets at an altitude of 19 miles and a range of 125 miles. China has also apparently placed YJ-62 anti-ship missiles on Woody Island. The YJ-62 is designed to sink warships and has a range of almost 250 miles.
In the Spratlys, China has constructed artificial islands atop several coral reefs and rocky outcroppings. Some of these artificial islands now feature landing strips that can accommodate military aircraft. In a February 2016 letter to Senator John McCain, Director of National Intelligence James Clapper wrote that by the end of this year, China will be able to “project substantial offensive military power” from these artificial islands.
China has also used subtler bullying tactics to press its claims in the South China Sea. A Chinese coast guard vessel recently rammed an Indonesian coast guard vessel in order to free a Chinese fishing vessel—an incident that took place entirely in Indonesia’s exclusive economic zone. China has also claimed the right to control fishing around the disputed Scarborough Shoal; the Philippines government claims that China seized the catch of some Philippine fishing vessels and has used water cannons to drive Philippine ships away. Most recently, the Vietnamese navy detained a Chinese vessel that was illegally fishing in Vietnamese waters, raising tensions between China and Vietnam.
During his September visit to the White House, President Xi said that “China does not intend to pursue militarization” in the South China Sea. Yet China’s recent actions seem to belie that claim. And there is increasing concern within the U.S. Navy that China aims to seize the Scarborough Shoal and build a military installation on reclaimed land there. Such a base would be approximately 140 miles from Manila, enabling China to threaten Subic Bay, Manila Bay, and the Luzon Strait.
Can all of this be explained away? China claims that its actions are either not examples of “militarization” or are simply defensive in nature. But with each thin slice off the salami, China increases its ability to dictate terms in the South China Sea. And China has made these advances with almost no pushback from the United States, other than two FONOPs conducted under the deferential requirements of innocent passage—even though the head of the U.S. Pacific Command has reportedly argued for a more aggressive approach.
The administration should heed voices within the U.S. Navy and recognize that its policy of accommodation is not working. In addition to more frequent FONOPs, conducted as normal operations rather than “innocent passage,” the U.S. should initiate a regularized program of military overflights and other military exercises within 12 miles of China’s artificial islands. These actions should be taken without fanfare or political rhetoric. The operations should directly challenge China’s weak Nine-Dash Line Claim to control the entire South China Sea. The U.S. should also encourage other regional allies such as the Philippines and Australia to participate in such exercises.
Beyond refuting China’s maritime claims, the U.S. should also encourage third-party assessments of potential environmental harm caused by China’s aggressive dredging activities on sensitive coral reefs.