Escalation in the South China Sea

Like the two other recent U.S. freedom of navigation operations (FONOP) in the South China Sea, the most recent U.S. FONOP was designed to avoid any conflict with China’s sovereignty claims. Instead, by conducting the operations under the rules of “innocent passage,” the U.S. Navy assumed China might have sovereign rights, but simply challenged China’s domestic law requirement that foreign warships give prior notification before entering what China claims is its territorial sea.

Despite this very limited challenge, China’s reaction to the U.S. FONOP has also been largely the same. Fighter jets were scrambled, and naval assets were deployed to shadow the U.S. ship during its passage. But two new aspects to China’s rhetorical response are worth noting. The shift in China’s rhetoric also reveals the limits of the U.S. reliance on FONOPs as a tool to deter Chinese expansionism in the region.

First, the Chinese defense ministry has begun to suggest that the continuation of U.S. FONOPs justifies its construction of “defensive facilities” in the South China Sea. Since the most recent round of U.S. FONOPs in the region began in October 2015 (after a four-year hiatus) and the Chinese land reclamation has been going on for almost two full years, this post-hoc justification for Chinese militarization of the region is hard to swallow.

Second, the Chinese foreign ministry has started directly engaging with the narrower U.S. legal argument against a prior notification requirement for warships. In fact, it tried to isolate the U.S. legal position. Drawing a distinction between commercial and military vessels, the Chinese foreign ministry spokesman stated that “No country, except the U.S., believes in military vessels sailing wherever they want, which is against international law.” The spokesman went on to say the U.N. Convention on the Law of the Sea, “allows innocent passage by foreign vessels through others’ territorial waters, but there is no specific term stating that military vessels have such a right.” China then pointed out that several other countries agree with China on this interpretation of UNCLOS.

The Chinese government is correct that some countries have continued to argue that the rights of innocent passage guaranteed by Article 19 of UNCLOS does not apply to warships. The plain language of Article 19 (“ships of all States”) suggests otherwise since the Convention specifies “warships” in other contexts when naval vessels have special treatment. But the disagreement has persisted over the years.

China’s shift from complaining about U.S. violations of its sovereignty to dueling interpretations of UNCLOS reflects a possible shift in its rhetorical and diplomatic strategy. While complaining about U.S. threats to sovereignty would only highlight the aggressiveness of China’s territorial claims, complaining about expansive U.S. naval operations is an issue with which other nations can find common ground with China. Indeed, China’s diplomatic corps has been working overtime to line up sympathetic nations to its non-acceptance of the pending UNCLOS arbitral tribunal case brought by the Philippines. Shifting focus toward arcane interpretations of international law is better and more solid ground for China.

The U.S. has the better and more persuasive interpretation of UNCLOS. But if China is able to drag the U.S. into the technical arguments over UNCLOS, some of the political force of the U.S. FONOPs will inevitably erode. While it should not abandon FONOPs, the U.S. needs to come up with different ways to challenge China’s land reclamations and expansionism. FONOPs are not going to be enough.

I agree with Julian about the limits of FONOPs for deterring China in the South China Sea, but for a different reason.

Put simply, FONOPs were never intended to be used as a tool in territorial or maritime jurisdictional disputes involving third parties. The purpose of the program is limited to asserting navigational freedoms that “excessive claims” to maritime jurisdiction by other states would restrict or constrict in ways that are inconsistent with “high seas freedoms” in UNCLOS. They are operational assertions using military vessels to reinforce U.S. declaratory policy on freedom of navigation, not actions to deter how states pursue their claims in maritime disputes. By definition, FONOPs are usually a reaction to claims already made by third parties, to demonstrate that the U.S. does not recognize them.

In the South China Sea, FONOPs can be used to challenge excessive claims from the various land features under dispute. Recently, as Julian notes, FONOPs have been used only to challenge restrictions on the transit of military vessels through a 12 nautical mile territorial sea, such as prior permission or prior notification. Looking forward, they could be used to challenge claims to maritime jurisdiction from some artificial islands that China has created, at least four of which would not be entitled to even a territorial sea because they are artificial structures built upon a low-tide elevation.

The recent FONOPs in the South China Sea have been publicized extensively. Paradoxically, such publicity may limit further the effect of FONOPs in a third party’s maritime disputes. Because they are considered to be a military operation, the Department of Defense almost never reveals the details or occurrence of particular FONOPS. Instead, they usually occur out of the public eye. After an operation takes place, the target state is informed through diplomatic channels to note the excessive claim that was being challenged. At the end of the year, the Department of Defense publishes a report listing the countries and excessive claims that are being challenged but does not release information about individual operations.

The uncommon and unusual publicity attached to the last three FONOPs in the South China Sea represents a departure from past U.S. practice. Moreover, regarding the dynamics of the disputes in the South China Sea, such publicity may backfire, for two reasons.

First, the publicity given to these operations, widely seen as designed to challenge China, invites China to respond. From Beijing’s perspective, these are viewed (incorrectly) as direct challenges to China’s sovereignty claims and as indirect challenges to China more generally. If China’s leaders do not respond, they risk being viewed domestically as weak or yielding to the United States. Although China’s responses have been measured and largely symbolic, the rhetoric contributes to the hardening of positions and escalation of disputes. Traditional FONOPs conducted out of the public eye would remove these incentives without weakening the content of the operational assertion.

Second, the publicity given to these recent FONOPs create strong incentives for China to emphasize its interpretations of the convention that Julian has described. Traditional FONOPs conducted out of the public eye would also remove these incentives without weakening the content of the operational assertion.

The United States should continue to perform FONOPs in the South China Sea—regularly but privately.

Julian Ku is certainly right that U.S. freedom of navigation operations conducted under the rules of “innocent passage” will not be enough to challenge China’s increasingly assertive actions on and around the disputed land features in the South China Sea. And tensions could escalate soon. If reports are correct, China’s artificial island building could soon extend to Scarborough Shoal located 123 nautical miles from the main island of the Philippines, 250 nautical miles from the disputed Spratly and Paracel land features, and 530 nautical miles from China’s Hainan Island. This would be a serious escalation on China’s part that would likely sink the incoming Philippine administration’s desire to reduce bilateral tensions over this issue, and lead to more pressure on the U.S. from concerned states in the region to push back against China.

Yet, the biggest shortcoming of U.S. FONOPs as a Chinese behavior-changing effort has nothing to do with the U.S. The biggest problem is that the U.S. alone is willing to conduct these operations and suffer China’s predicted and predictable backlashes. The maritime Southeast Asian states Japan and Australia arguably have more at stake in the South China Sea but are unwilling to conduct their own operations. Maritime Southeast Asian backing for the recent U.S. operations has been ambivalent at best, and offered more in private than in public or in diplomatic forums with China present.

This, more than the widely criticized decision by the Obama administration to limit their operations to innocent passage ones, undermines the strength of the FONOPs message sent to China. The lack of active or rhetorical support undermines these operations’ effectiveness in reflecting that the maritime Southeast Asian states and Japan share with the U.S. the conviction that China’s claims to maritime rights in the South China Sea are excessive and its artificial island building activities are destabilizing. By leaving the U.S. alone operationally and often publicly lacking support, it allows China to dismiss these operations as simply part of U.S. efforts to contain China.

Future U.S. FONOPs in the disputed waters of the South China Sea may benefit from relaxing the innocent passage restriction, particularly in relation to China’s recently constructed artificial islands. The pending ruling by the Arbitration Tribunal on the 2013 case filed by the Philippines under UNCLOS could rule that some or all of these artificial islands are constructed on low water features with no attendant territorial sea rights. However, the U.S. position in relation to the South China Sea disputes, and those of the maritime Southeast Asian states, Japan and Australia, would benefit more if the U.S. was not alone in conducting FONOPs. Or, at least, if support for U.S. FONOPs by these like-concerned states was more frequent, more public and more convincing.

Never in all of Chinese history did a government in the territory which is now China ever lay claim to the waters of what Vietnamese call the East Sea and Chinese the South Sea and Americans the South China Sea because American trading vessels in the 19th century often crossed this body of water on the way to China.

The first claim by China to the South Sea was in 1974 after oil came on to the Chinese Communist Party (CCP) security agenda. Throughout Chinese history, Chinese were taught that the southernmost part of China was Hainan island, not the Paracels and the Spratleys.

The nine dash line territorial claim to the islands of the South Sea was a 1947 Kuomintang (KMT) security response to WWII in which Japan had tried to take the islands of the West Pacific, including the South Sea, and then the U.S. military had to fight to get the Japanese military off the islands of the Pacific. The new KMT claim to a so-called Nine Dash Line in the South Sea had nothing to do with Chinese historical continuities. It was a response to so-called military "island hopping" during the Pacific part of WWII.

So far, CCP policies aimed at making the South Sea, going back to the 1974 Chinese invasion of the Paracels and the 1988 invasion of the Spratleys and the early 1990s seizure of Philippine islets, into an internal Chinese body of water are succeeding because China is strong and its neighbors are weak. Worse yet, the neighbors will not unite to stand-up to China. Only Vietnam might fight to not lose control of its territory, energy, fisheries and future to an expansionist China, and even that is far from certain. As much as India and Japan support Vietnam, it is hard to imagine that, in the immediate future, India, Japan and Vietnam will join together to militarily resist on-going Chinese expansion.

Since 2013, the CCP has switched from a policy of sticks—pure coercive assertiveness—to a policy of carrots—economic inducements, such as the One Belt One Road investment project. The CCP is persuaded that these weaker Chinese neighbors, whose territory and wealth the PRC is stealing, will have to choose between losing militarily to China and getting nothing for lost territory and a policy of surrendering to stronger Chinese forces and realizing some economic side-payment. The CCP is persuaded that its neighbors will make the latter choice so that China will get the South China Sea “peacefully.”

Nothing that has yet happened persuades me that the CCP calculus is erroneous.

International law lends itself to exalted rhetoric, which can often be detrimental to an accurate understanding of disputes between states and the potential for resolving them. This has been especially egregious in the South China Sea.

One of the pieces in the Related Reading section at right can serve as an example. A May 16, 2016 report from Stratfor is entitled “China Goes on Trial in the South China Sea.” Regardless of the merits of the ensuing analysis, the problem here is in the headline. A “trial” is a public court proceeding, with binding results, before an impartial judge that represents a common political authority that is supreme over both sides of the dispute and can enforce judgments against them.

That is not what is going on in Philippines v. China. These are two states that are involved in a limited, consent-based arbitration of an agreement. No state is “on trial” here, nor can they be. Because UNCLOS is a mere consensual agreement, its member states retain the ability to exit at any time. The same terminological error can be seen in referring to UNCLOS as a “constitution for the oceans” (constitutions, like trials, belong to sovereign states with Weberian “monopolies on the legitimate use of violence,” not to bodies of water). No army swears allegiance to UNCLOS, and no one is willing to die to defend its provisions (unless, that is, a state decides that it is in its interest to sacrifice its soldiers for this purpose). A consensual agreement between states is simply a different creature than a constitution.

These are not just quibbles over semantics. The limited potential of international law to help prevent or mitigate conflicts between states is wasted when we ask too much of it. To understand this point, think about the important question of whether the features of the South China Sea should be considered as “islands” or “rocks.”

There is, of course, a standard to determine the island/rock distinction under UNCLOS Article 121, which requires that the feature be “[a] landmass permanently above water that can sustain human habitation or economic life on its own.” But what does it mean for something to be “inhabitable” and “sustain economic life”? No one knows. In particular, China and Taiwan agree that the island of Itu Aba, which holds hundreds of permanent residents, with fresh water, crops and other food sources, and various other accouterments of human habitation, should qualify. But the Philippines has nonetheless sought to have Itu Aba classified as a mere “rock.”

Perhaps some conceivable new definition of “economic life” could define Itu Aba out of its island-hood. But this would be no more than high judicial casuistry, and we should recognize that. An innovative definition of this nature from the UNCLOS tribunal would not be some kind of inspired text, revealing to an ignorant world pre-existing characteristics of the Platonic form of an “island.” It would be a more or less arbitrary standard decided by five part-time arbitrators in the Hague.

These sorts of decisions do not bind states because they are inherently legitimate; they are legitimate when states agree to be bound by them. Often, we talk about international law as though it is a single body of rules, which are either universal (because any rational person working off of a blank slate would necessarily come up with these exact rules) or at least united by some common “intent” or unified normative vision. Neither is the case. Many treaty provisions are left vague because they are the result of political horse-trading between equal sovereign states, who (again) are free to exit and enter such treaties as they please. Perhaps the most important function of arbitration is to keep both parties in the system.

It is, of course, far preferable for everyone concerned if China advances its own interpretations of UNCLOS rather than simply ignores the treaty. The true danger of some U.S.-supported attempts at “lawfare” in the South China Sea is that they could (if taken to extremes) push China to see the treaty as fundamentally biased against its interests, prompting it to exit and seek to set up its own alternative system of rules rather than interpretation of existing rules. Ruling Itu Aba out of existence would be one easy way to make this bad outcome far more likely. But so might U.S. insistence on equating its own definition of “freedom of navigation,” or other such principles, with a universal standard that can brook no possible alternative. FONOPs are fine, but they should not be treated as defenses of the “true meaning” of international law. There are always alternative definitions available, and it is perfectly normal for states to advance them.