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Proper Mutual Assurance of Freedom of Navigation

Nov 04 , 2015

Tension is running high between China and the U.S. on the freedom of navigation, especially concerning the South China Sea.

After generating rhetoric for months, Pentagon eventually dispatched the USS Lassen to within 12 nm of Subi Reef in South China Sea, to show its will of practicing the right of freedom of navigation. Washington views an “artificial island” such as Subi Reef as having no basis for claiming sovereignty, let alone territorial waters. Therefore, the U.S. feels it has no obligation to exercise restraint over this area, which has lately experienced artificial transformation.

China’s view, however, is quite different. Beijing thinks that it is entitled to all islands and islets within its side of the “nine dashed lines”. Its last holistic claim of 1947 through these dashed lines met no opposition then by other powers. Other regional countries, such as Vietnam and the Philippines used to be either silent about or openly supportive of Chinese claims. For decades some had even made constitutions to legally stay away from China’s claim.

Over time, these countries have negated their earlier tacit or explicit admission of China’s claim. Hanoi has taken 48 lands and islets from the Spratly for the past four decades, while Manila has grabbed eight. Based on such occupation, they have reclaimed a number of these islets and reefs, much undercutting China’s legitimate sovereign interests.

While China has been opposed to such encroachment by the aforementioned neighbors, it has proposed to “shelve differences and co-develop” the disputed area. However, given the fact that these countries did not embrace co-development while seizing the disputed rocks, China has to turn to other islands and reefs so as to build up its own platforms. Obviously,China is unwilling to resort to the use of force to put an end to the dispute. Reclaiming its other rock features in South China Sea, such as Subi Reef, has become China’s alternative approach to risking its relations with other claimants through military means.

However, the U.S. has a problem in viewing China’s land reclamation in the South China Sea, in particular, with concern over the implication of such reclamation on the freedom of navigation in the entire South China Sea. Washington is upset by the prospect that the Chinese move would affect American dominion in the region and the world in the name of freedom of navigation.

However, by dispatching its warship to the waters near a Chinese reef, the U.S. has pushed its relations with China to a quite contentious status. It shall be noted that some rocks, such as Fiery Cross Reef, enjoy sovereign-water status in accordance of the 1982 UNCLOS, as they are high-tide elevations. Should the US seek its right of “innocent passage” there, it would have to follow both international law and China’s domestic law, especially the 1992 Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone. According to that Chinese law, other countries don’t enjoy unconditional right of innocent passage. They have to apply for a permit from China with a reason to pass by.

For low-tide elevation, the U.S. may think it a different case since such rock is not entitled to sovereign water. The Pentagon has not only dispatched USS Lassen to this place, but also voiced the possibility of sending an aircraft carrier. Possibly such show of American defense of international law would become a new normal in the years to come.

It will be great if America would always act with international law. However this has been far from the reality. The U.S. has gone long-distance to launch a preemptive war against Iraq without proper evidence or a UN mandate, toppling the government there and creating a humanitarian disaster. It has also been selling weapons to Taiwan, even after setting up official ties with mainland China, citing a domestic law called the Taiwan Relations Act. Washington cites its right of freedom of navigation, but it has not even ratified the UNCLOS, which stipulates such a right.

The U.S. talks about international law but acts selectively. It is unwilling to follow international law when such law would not suit its interests. Under such circumstances, it is prone to take offensive action to defend its interest despite of international law.

China has its own national interests. Beijing is displeased to see the U.S. navy and air force around its territorial waters. For offshore islands and reefs, it is unwilling to see the U.S. warships appear within what it defines as China’s territorial waters, in the case of high-tide elevation; or in its close water, in the case of low-tide elevation.

If the U.S. pushes its selective approach to international law too much, not only China-U.S. relationship is under challenge, its own overall interests could be impaired. Washington doesn’t merely have bilateral stake with Beijing, it also has regional and global interests elsewhere. It is crucial to take advantage of China’s help in the White House’s efforts to stabilize Afghanistan, to implement JCPOA with Iran, and to pursue denuclearization of the DPRK  – not to mention President Obama’s desire for his signature legacy from COP21 in Paris in a month.

China has both a right to build up its reefs and responsibility to respect international law. China will not exercise “freedom” to go to Iraq or other countries to topple a government there without the UN sanction.  China is unlikely to make domestic law about foreign affairs, saying a threat to a state prone to separate from a certain country constitutes a threat to China. China would exercise prudently its right of freedom of navigation in the close water of any other countries, and respect the common right of freedom of navigation around the globe.

Washington should talk to Beijing to assure their mutual respect for international law, instead of sending a warship so close to the other’s islands, no matter if such rocks are natural or artificial.

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