Is the US gearing up for a direct challenge to Beijing’s sovereignty claims in the South China Sea?

Mark Valencia says a follow-up freedom of navigation operation by the US Navy may well happen soon, but Washington must take into account the legal and political implications, as well as Beijing’s reaction to any ‘provocation’

PUBLISHED : Wednesday, 20 January, 2016, 4:23pm
UPDATED : Friday, 20 May, 2016, 1:59pm

Last October 27, the destroyer USS Lassen carried out a “freedom of navigation operation” in the South China Sea. It was rather a long time in coming, as the wisdom of doing so was hotly debated between the US Defence Department and the White House national security team.

It was purportedly intended to challenge China’s maritime claims there. But its execution was muddled and the message ambiguous. There is mounting domestic pressure in the US to follow it up with a clear challenge to China’s claims. But there is also mounting domestic pressure in China to respond to any further US “provocations”. So what is likely to happen next and what are the legal and political considerations?

Shortly after the USS Lassen steamed within 12 nautical miles of the China-claimed and occupied Subi Reef, analysts were predicting a quick follow-up in the vicinity of China-claimed and occupied Mischief Reef. But that has not happened. It may – and soon, but the delay is not a surprise. The decision is complicated.

Nearly two months passed after the Lassen incident before US defence secretary Ashton Carter responded to a letter from Senator John McCain, chairman of the US Senate Armed Services Committee. Carter’s reply was incomplete – it did not answer McCain’s first question: “Under the freedom of navigation programme, what excessive claims was the Lassen operation intended to challenge?”

Carter stated that the operation was conducted in accordance with “innocent passage” because the Lassen entered what “may be claimed as a territorial sea”. It was also executed without “prior notification”. Subi Reef was submerged at high tide before China’s reclamation work and thus, according to the UN Convention on the Law of the Sea, it is not entitled to a territorial sea, only a 500-metre “safety zone”.

Neither China nor Vietnam have specified their claims or baselines for territorial seas in the Spratlys

But the US defence department reckoned that Sand Cay – which is occupied by Vietnam but claimed by China (and the Philippines) – may be entitled to a 12-nautical-mile territorial sea, and the sovereign over Sand Cay could use Subi Reef as a base point, because Subi is within 12 nautical miles of the cay. So the freedom of navigation operation could be interpreted as primarily directed at Vietnam. Vietnam requires prior notification for foreign warships to enter its territorial sea. Further complicating the issue, neither China nor Vietnam have specified their claims or baselines for territorial seas in the Spratlys.

Carter’s explanation indicates that the freedom of navigation operation was meant to be less provocative than a direct challenge to China’s sovereignty claim over Subi Reef, while not conceding that Subi is entitled to a territorial sea. But it also limits the US ability to signal to China that it does not recognise any of its maritime claims from originally submerged features. Carter also stated in his letter that the operations do not “challenge any country’s claims of sovereignty over land features, as this is not the purpose or function of a [freedom of navigation operation]”. He added that, “Given the factual uncertainty, we conducted the [operation] in a manner that is lawful under all possible scenarios to preserve US options should the factual ambiguities be resolved, disputes settled, and clarity on maritime claims reached.” This explanation places rather severe guidelines on future freedom of navigation operations in the South China Sea.

Mischief Reef is politically significant because it was the first Philippine-claimed feature that China occupied

More such forays are coming – reportedly two per budgetary quarter. Given the ambiguity surrounding the Lassen operation, it is likely that the next one will be aimed at Mischief Reef. This feature – originally below sea level – is now one of the largest and most developed of the features that China has reclaimed in the Spratlys. It is also claimed by the Philippines, Vietnam and Taiwan. It is politically significant because it was the first Philippine-claimed feature that China occupied, it is near Reed Bank which supposedly harbours important petroleum resources, and the US is a defence-treaty ally of the Philippines.

In 1994 and 1995, China built initial structures on stilts there. The Philippine government protested, arguing that the feature was on its continental shelf and within its exclusive economic zone. These initial structures have now been replaced by more permanent fortress-like structures. Unlike Subi Reef, no other above-water features are within 12 nautical miles of it.

To show it does not recognise that the feature is entitled to a territorial sea, the US needs to “violate” innocent passage by having its naval assets sail close by and use radar, deploy helicopters, conduct manoeuvres or fire weapons. But doing so could be dicey. China’s response to the Lassen provocation was rather weak in terms of action, but that may not apply to a second operation.

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A freedom of navigation operation in the vicinity of Mischief Reef may seem straightforward to US Navy lawyers, but PLA leaders may not appreciate the nuances involved. The US claims it is not challenging any sovereignty claims. So, if it sends a warship to violate innocent passage around a China-claimed and occupied feature, it is signalling it believes the feature does not have a territorial sea because it is not subject to a sovereignty claim by any country. However, China may well view such an operation around Mischief Reef as a challenge to its sovereignty – and sovereignty is a Chinese “core interest”.

These are just some of the considerations for the US decision.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China