After five months of hints,
,
, and
, the US is
set to challenge
in the South China Sea.
But the months of signaling will cost us. What might have been a low-key “freedom of navigation operation” — sailing,
, or training in disputed areas to set a legal precedent for access — may well get a lot more complicated because of the buildup.
“[I’m] still waiting to see it before I believe it,” one
staffer said. (The Pentagon declined to comment when we asked for confirmation). “It’s long overdue, and the long delay has made it a bigger deal than it actually is.”
“I do think we have paid a price [for delaying], mostly in terms of confusing everybody about
why freedom of navigation operations take place,” said
, director of the China Power Project at the Center for Strategic & International Studies, who recently returned from her latest trip to China. “There are many people that I have spoken to in China who view this as a challenge to Chinese sovereignty, which it is
not, or who view it as a provocation, which it also is not.”
“People in official positions” in China are reportedly saying that the People’s Liberation Army should open fire at US forces if they enter the 12 nautical mile zone around artificial islands in the South China Sea, said retired Navy Commander
. (Under international law, such manmade landmasses do not confer sovereignty on those who build them). World War III is not going to happen, happily, he said, but the bellicose talk shows
.
has put themselves in a worse position strategically,” said Clark, now at the Center for Strategic and Budgetary Assessments. “It was all because the US delayed.” Normal freedom of navigation operations are quiet exercises in setting legal precedents — we can sail through this area, we can fly here, we can conduct operations — but five months of public uncertainty has made this one a big deal, he said.
“The US could have done much better by simply doing the exercise without saying anything about it, and China could have responded probably at a much lower level,” Clark told me. Now, “it forces China to react in order to save face [and] be able to argue to their people they didn’t take this lying down.”
There’s an impact on China’s maritime neighbors, too. “They’re very watchful,” said the Heritage Institute’s
. “I think it probably came as more than a bit of a shock when Secretary of Defense Carter makes these
,” Cheng told me. But then it becomes clear when Sen. John McCain pressed for an answer that the US hasn’t gone within 12 nautical miles of
any Chinese-claimed territory
.
At least one expert thinks the Obama administration has legitimate reasons for waiting, argued
, director of the Asia-Pacific Security Program at the Center for a New American Security. Yes, they waited too long: “The White House should already have green-lighted a FONOP and should announce that the U.S. plans to conduct such operations as a matter of routine,” he told me, “but I recognize the White House is looking at the issue through a different lens from the Pentagon.”
Freedom of navigation operations in November could complicate the president’s visit to Asia that month, Cronin said, overshadowing the rest of his agenda and making it harder to get Chinese cooperation on issues from cyber espionage to trade. Sailing or flying within the 12nm limit in September could have scuttled that month’s
. Earlier this summer, the administration was working hard on the Trans-Pacific Partnership and a climate change agreement, either of which an angry China could have undermined. Finally, the administration needed time to
, he said, since the primary point of the operation is to bolster local countries and the international community against Chinese bullying.
Our congressional sources disagreed. The long delay was frankly “embarrassing,” the Senate staffer said.
“The fact that it has taken so long undermines the legitimacy of the very legal claims the administration claims to be upholding,” agreed a House staffer. “Why would something that is in such indisputably solid legal ground require weeks and months of deliberation, played out in the world press? The administration should never had allowed a gap in these ops….This should be an absolute nothing-burger, allowing ships in innocent passage to conduct operations that had been done for decades until 2012.”
Innocent Passage & Military Activity
And this should not be a on-off event. “It has to be something that you do regularly, or regularly enough that you establish a legal precedent,” Clark said. With the significant exception of the UN Convention on the Law of the Sea — which the US hasn’t ratified but abides by nevertheless — international maritime law is largely a matter of precedents, customs, and norms, which freedom of navigation operations aim to establish.
“It can’t be just one entrance [into disputed waters],” Dean Cheng said. “It will have to be a sustained policy, and whether or not the decider in chief recognizes that is a question.”
“The United States needs to make these operations routine,” agreed Patrick Cronin.
Then there’s the question of
include. The simplest form of freedom of navigation operation is to sail through a body of water directly from point A to point B, without changing course to nose around or conducting any specifically military activity: This is exercising what’s called the right of innocent passage.
The Chinese are cranky about “innocent passage.” They often take offense at any foreign military vessel passing through their territorial waters without prior permission. But in the case of the South China Sea, just asserting the right to sail through may not be enough. That’s because international law, as
most nations interpret it, allows innocent passage even through territorial waters, that 12 nautical mile zone around their shores. So if the US just sails past Chinese-built artificial islets without doing anything else, that’s perfectly compatible with China’s claims that the islets are sovereign territory.
“If US ships … just drive through and demonstrate innocent passage… that doesn’t say whether those islands are real territory or not,” said Clark. To make a clear statement that the islets are
not Chinese territory and the 12 miles around them are
not Chinese territorial waters, the US forces have to conduct some kind of non-“innocent” activity.
This doesn’t have to be much, said Bonnie Glaser: “One option is to loiter in the area of 12 nautical miles for a period of time, not just travel from Point A to Point B, but spend an hour or two, or maybe go around the island.”
More likely, however, is some kind of explicitly military activity. The
says a US destroyer will be shadowed by a P-8 Poseidon surveillance plane. “Having the surveillance [plane] is certainly a military activity in and of itself,” said Glaser. “If it’s accompanied by a P-8, that would check that box. The ship itself wouldn’t have to do anything additional.”
If a ship were not accompanied by aircraft, it would need to conduct some unmistakably military activity: deploying its towed-array sonar to practice hunting submarines, for example, or launching a helicopter to look around.
What Would China Do?
...
