What a difference eight years can make. In January 2009, the South China Sea (SCS) was barely on the world’s collective radar. ‘Land reclamation’ was still an exotic term. China had yet to submit its ‘Nine Dash Line’ claim to an in international body or seize Scarborough Shoal from the Philippines. There were no Chinese aircraft carriers, no artificial islands, no ‘maritime militia’, and no ‘military alert zones’ in the Spratlys.
After 30years of comparative stability from 1979 to 2009, the SCS began seeing a wave of tumult eight years ago. Dormant territorial disputes in the Spratlys have been inflamed atop an emerging fault line in great power competition as a separate, unrelated dispute between the US and China over Freedom of Navigation (FON) has migrated to the SCS, and grown progressively intertwined with the sovereignty disputes there.
Meanwhile, Beijing seems increasingly determined to construct and operate within a parallel set of laws and norms governing FON and maritime entitlements gradually abandoning its commitment to the UN Convention on the Law of the Sea (UNCLOS) and customary international law.
For the US, the most concerning aspect of these developments relates to an escalating series of Chinese challenges to FON in the SCS. If the severity of those challenges was not clear before, in December 2016 the US was confronted with a blatant provocation when the People’s Liberation Army Navy (PLAN) stole a sovereign US drone in waters beyond even China’s so-called Nine Dash Line.<1>
As with the EP-3 incident three months after President George W. Bush’s inauguration, the drone theft two months before the inauguration of the Donald Trump presidency, set an ominous tone for bilateral relations.<2>It also confirmed what has become increasingly evident in recent years: China and the US—indeed, China and all nations committed to FON, UNCLOS, and a rules-based maritime order—have a fundamental conflict of interest in the South China Sea.
It is ironic that there remains so much confusion about American interests in the South China Sea, given how Washington’s position has been remarkably consistent for over 20 years. In 1995the US State Department identified US interests in the SCS as follows:<3>
On the critical questions related to sovereignty over the disputed rocks and LTEs in the SCS, America takes no position. Its principal interest lies in ensuring that the disputes are not resolved unilaterally by force.
The US is nevertheless a keen observer. Its neutrality on the sovereignty disputes is complicated by the involvement of its regional partners and treaty allies, and by a lack of clarity over the circumstances in which America’s treaty obligations apply to disputed features. More recently, violent shifts in the geopolitical dispensation of regional partners have further complicated matters.
Yet, these considerations pale in comparison to the one ‘core’ US national interest under growing threat in the SCS: Freedom of Navigation and the US commitment to practice and uphold FON for civilian and military vessels as defined by customary international law and UNCLOS.
While the US-China dispute over FON is complex and multi-layered, it revolves around two rather basic questions: where do China’s waters begin and end, and what is China entitled to do—and to restrict—in the maritime space under its jurisdiction? On both questions, the US position generally aligns with UNCLOS and customary international law. Despite signing and ratifying the Convention, China’s position does not. The US Congress has not ratified UNCLOS since it was signed by then President Bill Clinton in 1994 but has upheld its provisions on maritime entitlements and jurisdiction.
Broadly speaking, UNCLOS grants nations a 12 nautical mile (nm) territorial sea stretching out from their continental shelf where they enjoy expansive sovereign rights. Beyond that, nations are granted more limited rights over things like resource exploitation in a 200 nm Exclusive Economic Zone (EEZ). Uninhabitable rocks and natural islands also get entitlements: a territorial sea for the former and an additional EEZ for the latter. Features below sea level at high tide (LTEs) get no sovereign entitlements.
MARITIME JURISDICTIONS
| Territorial Sea | Up to 12nautical miles from a country’s baseline (low-water coastline). | Sovereign territory of the state. Foreign civilian and military vessels right to innocent passage. |
| Contiguous Zone | Up to 24 nautical miles from the baseline. | State may exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws. |
| Exclusive Economic Zone | Up to 200 nautical miles from baseline | Sovereign rights for exploring and exploiting resources; preserving marine environment; establishing artificial islands and structures |
| High Seas | All parts of the sea that are not included in the EEZ, the territorial sea, or in the internal waters of a state. No exclusive rights. |
Source: The National Oceanic and Atmospheric Administration (NOAA)
The US also upholds UNCLOS provisions on the creation of maritime ‘baselines’. Seized from Vietnam in 1974, China has drawn straight baselines around the Paracel Islands, claiming all the maritime space within as ‘territorial waters’, a right UNCLOS grants exclusively to archipelagic states. And American policy aligns with UNCLOS’ unambiguous treatment of artificial islands: namely, an LTE or rock cannot be ‘upgraded’ to a rock or island simply by blanketing it with sand from the ocean floor.
Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or continental shelf.<4>
By contrast, China has claimed maritime space and entitlements beyond those granted by UNCLOS, with its ill-defined Nine Dash Line claim over nearly the entire SCS serving as the most notorious, but by no means only, example. Legal scholars have long viewed the basis for this nebulous claim—China’s so-called ‘historic rights’—as inconsistent with UNCLOS. Their skepticism was confirmed by a July 2016 UNCLOS Arbitral Tribunal ruling which deemed the Nine Dash Line invalid and inconsistent with the Convention. In a sweeping decision, it also confirmed what many suspected: none of China’s seven outposts in the Spratlys—indeed, no feature in the Spratlys—was a ‘natural island’ before land reclamation entitled to an EEZ.
The core of the US-China dispute, however, relates to Beijing’s attempt to restrict military FON in its EEZ and territorial sea. China argues that foreign military operations in its EEZ and any foreign military activity in its territorial sea—including ‘innocent passage’—require prior notification and consent from Beijing.
From a legal perspective, international experts and law scholars have convincingly debunked China’s minority interpretation of UNCLOS, demonstrating that the Convention does not grant the coastal state expansive powers to regulate foreign military activity in the EEZ.<5> That is why China has increasingly downplayed UNCLOS in defending its position, arguing that its domestic laws supersede UNCLOS on these matters or that they are beyond the scope of the Convention.
From a practical standpoint, EEZs account for some 102 million square kilometers of the roughly 335 million square kilometers of ocean surface. Under China's interpretation, the US and other foreign militaries could be barred from operating in nearly one-third of the world’s oceans, an outcome unacceptable to Washington and one never envisioned by the drafters of UNCLOS.
At first glance, FON is a peculiar issue to quarrel over: every nation, including China, is a vocal proponent. “There has never been any problem with the freedom of navigation and overflight; nor will there ever be any in the future, for China needs unimpeded commerce through these waters more than anyone else,” Chinese President Xi Jinping explained in 2015.<6>
Chinese officials are less eager to publicly discuss how Beijing’s definition of FON extends only to commercial vessels and not military ones. Beijing has traditionally avoided articulating this directly but Chinese officials have grown less coy in recent years. In August 2015, Chinese Ambassador to the Philippines Zhao Jianhua bluntly stated: “No freedom of navigation for warships and planes.”<7>Two months later, an article in the official China Daily added: “China doesn't believe that the United States' military surveillance and reconnaissance in China's exclusive economic zone is freedom of navigation.”<8>
Of course, China’s opposition to military FON hasbeen evident for some time. While several capitals share Beijing’s position that foreign warships must receive prior notification and consent to operate in their EEZ or peacefully transit their territorial sea, their opposition has been limited to diplomatic protests. China, by contrast, has operationally challenged the US Navy warships and aircraft over one dozen ‘unsafe encounters’ since the turn of the century.
Until recently, this cat-and-mouse game largely unfolded off China’s mainland coast and Hainan Island. In 2014, however, China began an unprecedented spree of land reclamation and artificial island construction atop seven rocks and LTEs under its administration in the Spratlys.
These actions raised fears China would a) seek to claim territorial seas and EEZs for its artificial islands beyond what’s permitted under UNCLOS, and b) seek to illegally restrict US military FON around the outposts. Those fears were confirmed in May 2015 when a CNN crew aboard a US surveillance aircraft operating in international waters near China’s Spratly outposts captured a Chinese radio operator warning the aircraft to leave China’s ‘military alert zone’.
Given that China had no sovereign jurisdiction over that airspace, and since a ‘military alert zone’ has no basis in UNCLOS, the Obama administration came under a wave of pressure to conduct Freedom of Navigation Operations (FONOPs) around China’s artificial islands to challenge Beijing’s illegal action.
Since the late 1970s, the US Departments of State and Defense have been jointly operating a Freedom of Navigation Operations (FONOPs) program designed to challenge excessive maritime claims by any state, partner and adversary alike. Between 12 and 28 times a year, US military vessels fly and sail in ways that affirm America’s non-adherence to unlawful claims. Between October 2015 and October 2016, the Obama administration launched four publicly-acknowledged FONOPs in the SCS. The first three were designed to challenge China’s opposition to ‘innocent passage’ through its territorial sea by foreign warships. Two of those operations were conducted near China’s outposts in the Spratlys, bookending one near Triton Island in the Paracels. The fourth, launched near Woody Island, was designed to challenge China’s creation of illegal baselines around the Paracels in 1996, when it illegally “encompasses
Beijing has been highly critical of both ‘close-in’ surveillance operations and FONOPs in the past and the most recent operations were no different. They have “gone beyond the scope of freedom of navigation. It is a political provocation and the purpose is to test China's response,"<10> argued China’s foreign ministry. “Reconnaissance conducted by the U.S. military aircraft poses a potential threat to the security of China's maritime features, and is highly likely to cause miscalculation, or even untoward maritime and aerial incidents.”<11>
A December 2016 report by the National Institute for South China Sea Studies (NISCSS) argues that FONPOS are designed to “assert naval and aerial supremacy across the global, protect
Finally, Chinese officials have repeatedly accused the US of applying a double standard, insisting Washington would not accept the PLAN operating in America’s EEZ. This claim rings particularly hollow. Not only has the Chinese military been operating in Japan's EEZ for years, but in 2013 PLA Navy warships began doing so in America’s EEZ. At the Shangri La Dialogue in Singapore that year, a “Chinese participant confirmed that the PLA Navy had conducted unspecified activities in America’s EEZ around Guam and Hawaii, and said this was not perceived in Beijing as illegal or hypocritical.”<13>When Adm. Samuel Locklear, then head of US Pacific Command, was asked whether it was true the PLAN had begun such operations, he replied: "They are, and we encourage their ability to do that." Washington responded in similar fashion when five Chinese warships transited America’s territorial sea off Alaska in October 2015. “This was a legal transit of U.S. territorial seas conducted in accordance with
On 15 December 2016, the US-China FON dispute took an ominous turn in an incident some 50 nm northwest of the Philippines’ Subic Bay. The USNS Bowditch, an unarmed US survey ship manned by a civilian crew, was shadowed by a PLAN salvage and rescue vessel as it maneuvered to retrieve an ‘ocean glider’ Unmanned Underwater Vehicle (UUV) gathering hydrographic data. Before the Bowditch could recover the underwater drone, the PLAN ship abruptly launched a smaller vessel to capture the UUV. Just 500 meters away, the Bowditch established radio contact but the Chinese vessel responded simply, “we are returning to normal operations,” before quickly departing the area. The Pentagon demanded the immediate return of the UUV: “It’s ours, it was clearly marked, we want it back, and we don’t want this to happen again.” Five days later, China quietly complied, insisting Washington was “overhyping” the incident. “On the South China Sea issue, we took in humiliations with a humble view in past years. I think this era has ended,”<15> explained Wu Shicun, the director of the National Institute for South China Sea Studies shortly after the incident. Prof. Jin Canrong of Renmin University was less diplomatic: “China is a dragon, America is an eagle, Britain is a lion. When the dragon wakes up, the others are all snacks.”<16>
Compared to prior sparring matches between the US and China at sea, the UUV theft was unique and, for several reasons, uniquely troubling. First, it involved a PLA Navy ship. Chinese harassment activities are more often undertaken by civilian law enforcement ships, fishermen, and other ‘maritime militia’ vessels. The latter have drawn the water cannons of US navy ships before, even trying to snag the sonar arrays of US vessels with grappling hooks. However, they have never tried to steal an American drone. The most notable feature of the incident, however, was its location. Unlike prior naval incidents, the UUV incident was beyond any Chinese-claimed EEZ. Indeed, it was 600 nm from China’s coast, 300 nm from its Spratly outposts, 90 nm from Scarborough Shoal (which China seized in 2012 and which is not entitled to an EEZ) and, most incredulously, outside China’s Nine Dash Line claim.
Beijing has yet to offer justification for the PLAN’s actions beyond claiming the UUV was posing “navigation and personnel safety issues for ships in the area.” Even if this were true (and it is not), the PLAN’s refusal to return the drone after radio contact was established was unacceptable. Ashley Townsend of Australia’s Lowy Institute rightly characterised the incident as “unprecedented” and “one of the most brazen actions that the PLA Navy has taken against the U.S. Navy for a very long time.”
As concerning, there emerged signs that China’s attempts to limit FON are extending beyond the military sphere to the more sacred commercial sphere. At a speech in Honolulu in December 2016, Commander of the US Pacific Fleet Adm. Scott Swift warned that ships and aircraft operating near China’s artificial islands in the Spratlys “are subject to superfluous warnings that threaten routine commercial and military operations. Merchant vessels that have navigated shipping lanes freely on behalf of lawful international commerce are diverted after entering so-called military zones.”<17>
There was a time when US and Chinese officials insisted they had no conflict of interests in the South China Sea.<18> That era ended when China constructed artificial islands in the SCS and sought to restrict US FON around its Spratly outposts. The December 2016 NISCSS report concluded that the US-China FON dispute “has now evolved into the central South China Sea issue.”<19>What began as periodic harassment of US military vessels based on legal positions at least partly couched in international law has in recent years evolved into something more concerning and dangerous. Since the onset of a more assertive Chinese foreign policy in the late 2000s, and its more recent land reclamation activities in the Spratlys, Chinese challenges to FON have grown more frequent and brazen.
Despite ratifying UNCLOS, China appears determined to establish and operate under a parallel, subjective, and troublingly ambiguous regime governing the maritime space of the Western Pacific. As legal expert Julian Ku notes, the PLAN’s December 2016 seizure of a US drone was “in clear violation of any possible theory of international law” and “shows that China is veering further away from a putative rules-based global order.”<20> A “rules-based order” and a “principled order” are two things the Obama administration—and Defense Secretary Ashton Carter, in particular—have talked a great deal about in recent years. The frontline in the battle to institutionalise and defend that order has been, and will remain, Freedom of Navigation. As Admiral Harry Harris, the head of US Pacific Command, argued in a 2015 speech: “There is one global standard for freedom of navigation – not a double standard by which China can fly, sail, and operate wherever international law allows while other nations cannot.” “International seas and airspace,” he said, “belong to everyone and are not the dominion of any single nation.”<21>
There are few issues where the US stands on firmer legal and moral ground, and is more unequivocally backed by historic precedent, domestic and international law, US national interests, and a majority of the world’s capitals. If, with every conceivable wind at their back, the US and the myriad capitals vocally committed to FON cannot draw and enforce a line around this ‘core interest’, any aspirations for a principled and rules-based order will prove exceedingly short-lived.
Jeff M. Smith is the Director of Asian Security Programs and the Kraemer Strategy Fellow. He is the author of Cold Peace: Sino-Indian Rivalry in the 21st Century (Lexington Books, 2014), Co-Editor of the World Almanac of Islamism 2014 (Rowman and Littlefield 2014), and contributing author to a number of books and monographs on Asian security issues.
This article was originally published in GP-ORF’s Line in the Waters<1>Pentagon demands China return US underwater drone, CNN, December 19, 2016http://edition.cnn.com/2016/12/16/politics/chinese-warship-underwater-drone-stolen/
<2>China-U.S. Aircraft Collision Incident of April 2001: Assessments and Policy Implications , CRS Report for Congress October 10, 2001 https://fas.org/sgp/crs/row/RL30946.pdf
<3>Daily Press Briefing, U.S. Department of State, May 10, 1995 http://dosfan.lib.uic.edu/ERC/briefing/daily_briefings/1995/9505/950510db.html
<4>UNCLOS Part V Article 60, http://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm
<5> Raul Pete Pedrozo, Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China's Exclusive Economic Zone, Chinese Journal of International Law, (2010) 9 (1): 9-29,http://chinesejil.oxfordjournals.org/content/9/1/9.full
<6>Forging a Strong Partnership to Enhance Prosperity of Asia – Speech by Xi Jingping, President of the PRC at the National University of Singapore, November 7, 2016 http://www.fmprc.gov.cn/mfa_eng/topics_665678/xjpdynxjpjxgsfw/t1313923.shtml
<7>Chinese diplomat outlines limits to freedom of navigation, Military Times, August Times, August 12, 2015 http://www.militarytimes.com/story/military/2015/08/12/chinese-diplomat-outlines-limits-freedom-navigation/31535711/
<8>Forum heralds regional security cooperation, China Daily, October 14, 2014 http://www.chinadaily.com.cn/opinion/2015-10/14/content_22178714.htm
<9>Mischief Reef: President Trump’s First FONOP?, Asia Maritime Transparency Initiative, November 30, 2016 https://amti.csis.org/mischief-reef-president-trump/
<10>China says won't cease building on South China Sea isles, Reuters, November 22, 2015 http://www.reuters.com/article/us-asean-summit-idUSKCN0TB01P20151122
<11>Foreign Ministry Spokesperson Hong Lei's Regular Press Conference, Ministry of Foreign Affairs, PRC, May 22, 2015 http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1266162.shtml
<12>U.S. Navy ship sails by China’s manmade island in South China Sea, PBS News Hour, October 27, 2015 http://www.pbs.org/newshour/rundown/china-warns-u-s-navy-ship-sails-chinese-built-island/
<13>The Shangri-La Dialogue Report-2013, IISS, July 2013 https://www.iiss.org/-/media/Silos/ShangriLa/The-Shangri-La-Dialogue-Report-2013/Shangri-La-Dialogue-Report-2013.pdf
<14>Chinese Navy Ships Came Within 12 Nautical Miles of U.S. Coast, Wall Street Journal, September 4, 2014 http://www.wsj.com/articles/chinese-navy-ships-off-alaska-passed-through-u-s-territorial-waters-1441350488
<15>Beijing throws down the gauntlet, seizes U.S. undersea drone in South China Sea, The Japan Times, December 17, 2016 http://www.japantimes.co.jp/news/2016/12/17/asia-pacific/u-s-demands-return-underwater-drone-seized-china-south-china-sea/#.WFxYaLIrKpo
<16>Quotation of the Day, The New York Times, December 19, 2016 http://www.nytimes.com/2016/12/19/todayspaper/quotation-of-the-day.html
<17>Speech by Admiral Scott H. Swift, Commander, U.S. Pacific Fleet, Cooperative Strategy Forum, Honolulu, Hawaii, December 14, 2015 http://www.cpf.navy.mil/leaders/scott-swift/speeches/2015/12/cooperative-strategy-forum.pdf
<18>Jeff Smith, Let's be Real: The South China Sea is a US-China Issue, The Diplomat, June 24, 2015, http://thediplomat.com/2015/06/lets-be-real-the-south-china-sea-is-a-us-china-issue/
<19>Report on the Military Presence of the United States of America in the Asia Pacific Region 2016, National Institute for South China Sea Studies, Institute for China-American Studies, December 2016http://chinaus-icas.org/materials/test/
<20> Julian Ku, The Nonexistent Legal Basis for China’s Seizure of the U.S. Navy’s Drone in the South China Sea, Lawfare Blog, at https://www.lawfareblog.com/nonexistent-legal-basis-chinas-seizure-us-navys-drone-south-china-sea
<21> Admiral Harris Addresses the 2015 Halifax International Security Forum, U.S. Pacific Command, November 21, 2015 http://www.pacom.mil/Media/Speeches-Testimony/Article/630828/admiral-harris-addresses-the-2015-halifax-international-security-forum/
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