An Innocent Mistake
By Jeff M. Smith
December 3, 2015
Before year's end, the administration of U.S. President Barack Obama is reportedly planning to conduct a second freedom of navigation operation (FONOP) around one of China's new artificial islands in the South China Sea. Designed to show that the United States will not recognize any Chinese attempt to establish expansive maritime rights around its man-made outposts, the operation will mark the second mission in as many months, after an October 27 FONOP around China's Subi Reef.
A bipartisan group of regional analysts and defense experts roundly criticized the Obama administration for its handling of that patrol, including its muddled messaging and potentially self-defeating execution. In fact, the Subi Reef FONOP may represent the first case in the 36-year history of U.S. freedom of navigation patrols in which an operation strengthened an illegal maritime claim rather than challenged it.
The Obama administration can't afford to repeat the same mistakes during its next operation. The drama unfolding in the South China Sea today will help shape the fate of maritime law in the twenty-first century, so the United States must ensure that both the messaging and execution of its activities there advance its broader strategic goals.
HIGH SEAS, HIGH STAKES
In 2013, China quietly began dredging sand from the ocean floor and dumping it on rocks and low-tide elevations, eventually creating seven new artificial islands in the disputed Spratly archipelago. Now totaling some 3,000 combined acres, China's man-made outposts, which are scattered amid nearly 600 rocks, shoals, and islets also claimed or occupied by Malaysia, the Philippines, Taiwan, and Vietnam, have alarmed states across the Indo-Pacific.
For one, the outposts are likely to strengthen China's claim to lucrative territory, resources, and fisheries in the Spratlys. Second, the islands can serve as power-projection platforms for the Chinese military (China has constructed airstrips on some of the islands but has claimed that these facilities are not meant to "militarize the South China Sea"). Third, control of the South China Sea could provide China's nuclear submarine force with a deep-water bastion in which to avoid detection by adversaries. Finally, and perhaps most important, the Spratlys offer Beijing a foothold in a strategically and commercially vital waterway through which half of the world's merchant tonnage passes each day.
For the United States, China's artificial islands pose an additional challenge. Of the many disputes that plague U.S.-Chinese relations, arguably the most volatile has to do with freedom of navigation. The disagreement is based in part on the two countries' incompatible interpretations of the UN Convention on the Law of the Sea. (The United States has signed but not ratified UNCLOS and has long upheld its terms on maritime sovereignty; China has both signed and ratified the treaty but interprets it more selectively.) Backed by centuries of precedent and a majority of states worldwide, the United States seeks to maintain a liberal maritime regime that grants extensive freedoms to vessels on the "high seas," or beyond the 12-nautical-mile "territorial sea" UNCLOS grants to all coastal states. China and a few other nations, such as Iran and Nicaragua, take a more restrictive view of maritime law that grants states expansive sovereignty both within and beyond their territorial seas. This interpretation manifests in Beijing's tight restrictions on the operation of foreign military vessels in China's territorial sea and 200-nautical-mile exclusive economic zone - a position that has led to numerous confrontations in the western Pacific between Chinese and U.S. naval vessels.
If the United States was alarmed by China's artificial island construction, it had few legal methods to contest China's campaign. UNCLOS does not prohibit land reclamation, and the United States did not object when other states, such as the Philippines, Taiwan, and Vietnam, dredged sand to fortify their own outposts in the South China Sea, albeit on a much smaller scale.
What the United States could have done, however, was make clear that it would not recognize any illegal maritime claims made by China around the artificial islands beyond what is allotted by UNCLOS: a 500-meter "safety zone" for low-tide elevations (LTEs), or features that are above water only at low tide; a 12-nautical-mile territorial sea for above-water rocks; and a 200-nautical-mile exclusive economic zone for natural islands. UNCLOS is clear that it is impossible to upgrade the legal status of rocks and LTEs through land reclamation: an artificial island built on an LTE, in other words, is legally still an LTE with no territorial sea. A number of China's land reclamation projects in the South China Sea fit this description.
A COSTLY DELAY
The United States' concerns that China would seek extralegal rights for its Spratly outposts were apparently confirmed in May, when the Chinese military warned off a U.S. P-8 patrol aircraft operating more than 12 nautical miles away from one of China's artificial islands. The Chinese radio operators who ordered the P-8 to leave China's "military alert zone" were unaware that a CNN news crew aboard the plane had been filming their unlawful challenge. Unwittingly, the Chinese had given Obama additional reason to order a FONOP around China's artificial islands, plans for which the Pentagon reportedly began to develop immediately.
Much of the expert community advised a quick and quiet operation, particularly after it was revealed that no FONOP had been conducted around China's Spratly outposts since 2012, before China began its land reclamation projects there. Yet the Pentagon ran into a number of delays: Secretary of State John Kerry and National Security Adviser Susan Rice reportedly hoped that postponing the operation would ease tensions between Beijing and Washington before the June U.S.-China Strategic and Economic Dialogue and the September summit between Obama and Chinese President Xi Jinping in Washington.
In the event, the June meeting yielded few tangible benefits, but delaying the FONOP incurred a cost: months of public discussion over the operation provoked Chinese nationalists, and Beijing's stance on the issue hardened. By the fall, the anti-American rhetoric in the Chinese media was uncharacteristically inflammatory, threatening a confrontation at sea. In the first week of September, Chinese warships conducted their first-ever passage through U.S. territorial waters off Alaska's Aleutian Islands; then, on September 15, Chinese fighter jets harassed a U.S. reconnaissance plane in international airspace 80 miles east of China's Shandong Province. (The Pentagon reacted calmly to the Chinese mission off Alaska, which it described as a legal operation, but it condemned the incident off Shandong Province as "unsafe.") The following week, Xi and Obama failed to reach an understanding on the artificial islands during their summit in Washington. Obama reportedly decided to authorize a FONOP in the Spratlys soon after Xi left.
THE FAILED FONOP
Over the weekend of October 24, amid rumors that the U.S. Navy was preparing for a FONOP in the Spratlys, a Chinese submarine was spotted trailing a U.S. aircraft carrier in international waters near Japan, the first such incident in nearly a decade. A few days later, on October 27, Washington dispatched the USS Lassen, a guided missile destroyer, to sail within 12 nautical miles of Subi Reef, a Chinese artificial island built on a low-tide elevation. During the five-hour transit, Chinese destroyers shadowed the Lassen and warned it to leave Chinese waters. Soon after, Beijing deployed advanced J-11B fighters to an airfield on Woody Island, 200 miles closer to the Spratlys than their previous base on Hainan Island.
Compared with its vitriol before the FONOP, however, Beijing's rhetoric after the mission was quite subdued. An editorial in a premier nationalist mouthpiece, the Global Times, urged restraint, insisting that the United States "has no intention to launch a military clash with China" and that the FONOP was part of a "political show" that China should regard "with calm."
If Beijing was happy to accommodate Chinese nationalists in an attempt to stare down the Obama administration before the FONOP, it was forced to muzzle those nationalists after the operation when it was unprepared to respond recklessly. By delaying the FONOP, then, the Obama administration forced Beijing to play a dangerous game: each bout of hard-line posturing strengthened the hand of Chinese nationalists and raised the cost of concession and conciliation in the future.
What did the Obama administration hope to achieve with the Subi Reef FONOP? Most experts assumed that it would demonstrate the United States' rejection of any territorial sea claims around Subi Reef. The Lassen could have sent this message by carrying out any activity that UNCLOS prohibits within territorial seas, such as aerial or naval reconnaissance or the deployment of a helicopter or sonar array.
A slow and occasionally confusing stream of details following the operation suggested that the Lassen sailed within six or seven nautical miles of Subi Reef before transiting near other Spratly outposts controlled by the Philippines and Vietnam. (This apparent demonstration of impartiality was dismissed by Xinhua as a "gimmick" that "cannot conceal to which side the United States is tilted.") As more details emerged, however, many in the U.S. expert community were surprised to learn the Lassen had not made any moves prohibited by UNCLOS in a territorial sea during its transit of Subi Reef.
Instead, the Lassen seemed to be challenging China on a separate dispute over the right of innocent passage, a convention in international maritime law that allows foreign vessels to sail through another country's territorial sea so long as they do not undertake any threatening activities. Most countries allow foreign warships to conduct innocent passage without prior notification; China is among the few that do not. By sailing within 12 nautical miles of Subi Reef without Beijing's approval, the Obama administration reaffirmed its long-standing opposition to Beijing's demand for prior notification for innocent passage. But it did nothing to address the excessive claims around China's outposts - apparently, much to the disappointment of many Pentagon officials. What is worse, because by definition innocent passage can take place only in a territorial sea, the Lassen's operation may have inadvertently validated any future Chinese claim to a territorial sea around Subi Reef.
Why, then, did the Obama administration opt for an innocent passage operation? Silence from the White House has left observers to speculate.
The analysts Peter Dutton and Bonnie Glaser offered perhaps the only plausible explanation in a November essay in The National Interest. The only condition under which UNCLOS grants a territorial sea to an LTE is when the LTE lies within 12 nautical miles of an island. In such cases, the LTE can serve as an extension point to "bump out" the territorial sea centered around its neighbor.
Aside from Thitu Island, which is occupied by the Philippines, the only feature within 12 nautical miles of Subi Reef is Sandy Cay, an unoccupied rock claimed by China, the Philippines, Taiwan, and Vietnam. By this line of reasoning, the Lassen's innocent passage would have recognized a territorial sea for Subi Reef by virtue of its proximity to the Chinese-claimed rock of Sandy Cay.
A number of maritime security experts have either criticized or flatly rejected this logic. For example, James Kraska, former oceans and law policy adviser for the Joint Chiefs of Staff, and Raul Pedrozo, former head of the U.S. Navy's International and Operational Law Division, find it "too clever by half." First, read literally, UNCLOS allows LTEs to extend territorial seas centered only around a "mainland or island," not a "rock" like Sandy Cay. Second, UNCLOS stipulates that "the feature of one country cannot be used to generate maritime entitlements for a feature of another country." So even if Sandy Cay were an island, both it and Subi Reef would have to be occupied by China for the latter to enjoy a territorial sea - and Sandy Cay is not occupied by any country. Finally, Kraska and Pedrozo note, a territorial sea exists only when it has been declared by a sovereign authority. But China lacks sovereignty over Sandy Cay, and it has not claimed a territorial sea for Sandy Cay, Subi Reef, or any of its other artificial islands.
By proceeding as if Subi Reef enjoys a territorial sea, then, the Obama administration appeared to grant China maritime rights that it lacks under international law and has never even claimed. In turn, it sent the message that Washington will respect all manner of Chinese claims in the Spratlys, possibly including all the territory within China's so-called nine-dash line, an enormous and vaguely demarcated portion of the South China Sea that the State Department has claimed "does not accord with the international law of the sea."
More than a month after the Subi Reef operation, there are still more questions than there are answers. But the Obama administration should have an easier time with the next U.S. FONOP, which will reportedly target the Chinese outpost at Mischief Reef, another LTE. Unlike Subi Reef, Mischief Reef is not within 12 nautical miles of any other feature, precluding any questionable legal rationale for conducting an innocent passage operation. The upcoming FONOP must clearly demonstrate Washington's nonrecognition of any claim of a territorial sea around Mischief Reef. And that means the U.S. Navy must conduct activities explicitly prohibited by UNCLOS within 12 nautical miles of the LTE. As it prepares for this and future FONOPs, which will apparently be conducted around twice per quarter, the United States should keep a few lessons in mind.
U.S. officials should not publicly discuss specific operations weeks or months in advance. Doing so offers no strategic benefits and, by provoking Chinese nationalists, increases the pressure on Beijing to offer a forceful response. For similar reasons, the United States should conduct such operations quietly. After each FONOP is completed, the Pentagon should clearly announce its legal goals and the excessive maritime claims it challenged. Above all, the Obama administration should recognize that it has a vital strategic interest at stake and international law on its side, and so it should treat FONOPs not as provocative acts but as sound assertions of long-standing principles.
Jeff M. Smith is Director of Asian Security Programs at the American Foreign Policy Council and the author of Cold Peace: China-India Rivalry in the Twenty-First Century. Follow him on Twitter @Cold_Peace_.