U.S. Navy surveillance photo of what it says are Chinese dredging vessels fortifying a reef in the South China Sea in May, 2015. (US Navy via Reuters)
Last night I offered a brief reading list about the long-building naval showdown in the South China Sea, plus my own Twitter-scale guide to correct policy there. The latter is a derivative of “speak softly and carry a big stick.” In this case that means continuing to send U.S. naval vessels through traditional sea lanes, but not bragging, taunting, or making a big rhetorical deal of it.
Judah Grunstein, editor of World Politics Review, writes in with these useful elaborations. I turn the floor over to him, with emphasis added by me:
Some thoughts about the right U.S. policy on this, which you sketched out at the end of your post from yesterday.
I'd add that an important component of this policy should be to carry out the very same patrols around similar submerged features claimed by other countries in the South China Sea. Even though China is the only one to have built submerged features into artificial islands, the patrols must be clearly seen as reinforcing the maritime norm involved, without bias or prejudice to who is claiming the features. Otherwise they can be portrayed as the U.S. provoking China, which is in neither side's interest.
This is not as easy as it sounds, by the way, because of the complicated nature of the legal rights accorded various features, and the confusion regarding which SCS [South China Sea] features qualify as what under the UNCLOS [JF note: United Nations Convention on Law of the Sea, which the U.S. has not ratified] as this article explains well.
One other point that gets mentioned less in coverage of the disputed territorial claims is that China is also disputing the interpretation of the actual norms involved, namely whether the economic exploitation rights over an an exclusive economic zone (EEZ) accorded by UNCLOS apply to regulating the "innocent passage" and activity of military vessels in the EEZ.
China argues that it has the right to regulate passage of naval vessels, including excluding them, from its Economic Exclusion Zones. The U.S. and most other countries disagree. Their interpretation is a minority one, but it is not that far-fetched when you consider how much of the U.S. Navy activity in the SCS is maritime surveillance and espionage focused on China, and therefore arguably not so innocent. The EEZ interpretation does not apply to the submerged features, but is part of the larger context of who has access to what in the SCS.
Finally, I'd add that another component of the right U.S. policy would be to ratify the UNCLOS upon which all of its policy is based, but good luck with that.
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Let me spell out this very important last point. The overwhelming majority of nations in the world, including all of Europe, bigshots like Russia and China, nearly all of Latin America and Africa, all the trade-dependent Asian/Pacific countries, etc, have ratified the Law of the Sea convention. The one huge exception is … the United States.
Pentagon officials have long testified in favor of ratification. So have officials from the State Department. The George W. Bush administration was in favor of it, and the Obama administration is now. But thanks to anti-government, anti-internationalist absolutists in the Senate (think: Sen. Jim Inhofe), the United States has not signed on. You can read more about it here and here.
Why does this matter? It’s one more sign of the nihilist dysfunction we see in the ExIm debate, government shutdowns, and elsewhere. The United States would be on much stronger ground in drawing a line against current Chinese maritime claims, if it had ratified the treaty. The Law of the Sea norms are the ones the U.S. is trying to enforce! But this reality has not penetrated the right-wing opponents of anything that smacks of world government. And we lumber on.
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For a completely different approach to the whole topic, you can see Amitai Etzioni’s South China Sea paper, in PDF here. He is wary of any military-based enforcement of Freedom of Navigation norms.
U.S. commander of the Pacific Fleet, Adm. Scott Swift, discussing freedom of navigation earlier this month, in Australia. (David Gray / Reuters)
… here are a few things to read:
1) “China Announces the U.S.’s Spratly Patrols to the Masses,” by Andrew Chubb in SouthSeaConversations. This is an informative view on the domestic-Chinese politics of this episode of standing up to the bullying American forces. Sample:
The high-handed [Chinese] demand that the American side “correct its mistakes” leaves the CCP [Chinese govt] well positioned to claim that its stern response forced an aggressive hegemon to back down.
At least one US official has described the patrols are “routine“, suggesting there will be more to come. Even if the US patrols happen, say, once a month from now on, it will be up to the CCP to decide how often Chinese mass audiences hear about this. Having established a high level of domestic publicity on this occasion, the CCP might well be able to (implicitly or explicitly) encourage the perception that it forced the US to back down, simply by not affording the publicity to future FoN [Freedom of Navigation] patrols.
FON operations are intended to challenge maritime claims that the United States considers excessive under international law…. This particular operation was intended to assert that the United States does not recognize a 12-nautical-mile territorial sea or any other maritime entitlements generated by reefs that were originally submerged but on which China has built artificial islands. It was not meant to challenge China’s claim to Subi Reef itself.
FON operations are not primarily about military deterrence or diplomatic messaging, though in a politically charged atmosphere like the South China Sea those play a role. At its root, FON operations are legal exercises to reinforce the United States’—and in this case the overwhelming majority of the international community’s—interpretations of international maritime law. They are a means to ensure that U.S. naval, coast guard, and civilian ships, and by extension those of all nations, maintain unrestricted access to their rights at sea.
"The action by the U.S. warship has threatened China’s sovereignty and security interests, endangered the safety of personnel and facilities on the islands and damaged regional peace and stability," said Lu Kang, a spokesperson for the foreign ministry. Kang urged the U.S. government to "correct its wrongdoing immediately" and to avoid further "dangerous and provocative actions."
Whatever the protestations from Beijing and others, this will no doubt be just the first of many freedom of navigation operations in and around the Spratly Islands.
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The right U.S. policy, in my view, is continuing to send ships through these traditionally international sea lanes*, as a reminder that China has not annexed them; but without gloating or chest-bumping China about it, an approach that has no record of having paid off. You’ll see more of the rationale in these articles.
Update: Read this followup note, “The Right Way to Enforce Freedom of Navigation in the South China Sea.”
* Clarification I’ve heard from readers who point out that there are technical maritime connotations to the term “sea lanes,” along with the related concept of SLOCs, Sea Lines of Communication. I am using the term here in an everyday sense of navigable waters that had traditionally been considered international, rather than as a technical maritime term.
