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Hands Off ADIZ Islands
China Angry at U.S. Plans for South China Sea

Yesterday afternoon, it was leaked that Secretary of Defense Ash Carter had asked his staff to draw up plans for sending surveillance craft and U.S. naval vessels to the South China Sea within 12 nautical miles of the reefs the Chinese have been building up in the past few months. The White House, it was reported, had not yet signed off on the plans, giving the Chinese a  face-saving path to de-escalation—should they choose to take it.

Rhetorically, at least, the Chinese have opted not to take it:

“We are severely concerned about relevant remarks made by the American side. We believe the American side needs to make clarification on that,” said Foreign Ministry spokeswoman Hua Chunying. […]

“We always uphold the freedom of navigation in the South China Sea,” Ms. Hua said. “But the freedom of navigation definitely does not mean the military vessel or aircraft of a foreign country can willfully enter the territorial waters or airspace of another country. The Chinese side firmly upholds national sovereignty and security.”

Ms. Hua said Beijing urged “relevant countries to refrain from taking risky and provocative action.”

As yesterday’s Wall Street Journal article pointed out, U.S. surveillance planes have been approaching the 12-mile exclusion zone around the built up reefs in recent weeks but have not yet penetrated it. The Chinese would routinely warn the planes that they are close to entering Chinese sovereign territory, to which the pilots would radio back that they are flying in international airspace. U.S. officials said they don’t interpret the built up reef outposts as sovereign territory under international law, and thus do not recognize any 12-mile exclusion zone around them as territorial either.

China isn’t quite saying that it isn’t bound by international law here; it’s claiming that international law is on its side. The 12 miles of exclusive economic zone figure, for example, comes directly from the amount of maritime territory that the 1982 UN Convention on the Law of the Sea (UNCLOS) grants countries with natural coasts and islands. So, it’s worth noting how weak China’s legal case is. Part V, article 60, section 8 of the UNCLOS stipulates:

8. 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 the continental shelf.

It doesn’t get much more unambiguous than that. So China’s only real hope with its island building efforts is to change the situation on the ground and to establish effective control, not to exploit a loophole in the legal language. But as we can see, international law is quite clear that in doing so it’s interfering with freedom of navigation in international waters and the airspace above.

Now that the U.S. is threatening to ignore Chinese claims about the law, all eyes are on the White House. What’s the next step?

This post has been updated.

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  • Dan Greene

    >>”Artificial islands, installations and structures do not possess the status of islands.”

    Yes, that’s certainly conclusive. (And a TAI writer actually doing some research to bring forward the facts is a hopeful sign too.)

    Of course there is one other relevant fact: Although China is a party to the UNCLOS treaty, the US is not. So is it legal for a state to enforce the provisions of a treaty to which it has never been a party? Evidently, we will simply do what we did in the East China Sea, which is to show by transit that we do not accept any assertion of territoriality by China and not try to make a formal assertion of UNCLOS.

    I agree with the author that “China’s only real hope with its island building efforts is to change the situation on the ground and to establish effective control, not to exploit a loophole in the legal language.” We can transit through the area as we transit through the NW passage to show Canada we don’t accept their claim that it is entirely Canadian water.

    So it seems likely that the Chinese will keep building for the purpose of developing a strategically dominant footprint in the long term.

  • Anthony

    “In the coming decades, nothing will matter more for global peace, prosperity, and governance than how the United States and China handle the ongoing shift in their relative power.” http://www.project-syndicate.org/commentary/america-china-relations-constructive-realism-by-gareth-evans-2015-04

  • Kevin

    Why on earth should the Chinese back down? Obama has shown he will talk a good game but when push comes to shove, he will usually back down. (Syrian redlines for example). What Chinese leader would believe “Yes, Obama has folded before every previous time, but thus time he really means it.” Especially when this issues means a LOT more to China than the U.S. – Obama will pay virtually no domestic political price if he backs down. In contrast Chinese popular and elite opinion will turn against any leader who backs diwn in such a humiliating way – bringing back all the memories of the unequal treaties and a century of national humiliation; a development which would also make the leaders who capitulated in this manner vulnerable to their colleagues in power struggles. (See the fates of Khruschev and Galtieri for what happens to autocrats who play the nationalist card in Cuba or the Falklands to overcome domestic weakness but then back down or are defeated.)

    • Dan Greene

      What is it exactly that you want Obama to do? He can send planes and ships through whatever “territorial” waters we anticipate the Chinese might claim around these islands to show we will not accept such as an assertion. But there is noting illegal per se in building these islands if they do not interfere with international shipping and are not in any other country’s territorial waters. The result will likely be the same as our transit through the ADIZ in the East China Sea. The Chinese will “back down” at least for now, but they will keep building.

      The islands will still exist as unsinkable (though rather vulnerable) aircraft carriers that could conceivably play a much more significant role in the much longer term. What in your mind constitutes “backing down?”

      • Nevis07

        I mean, ultimately, there are three options I can see.

        1) do nothing and let the Chinese change the facts on the ground
        2) breach their 12 mile claimed area
        3) start building islands of our own (or for, or in assistance to other countries)

        If I had to choose, I’d say option 3 personally. For a while now, I’ve been an advocate of a foreign policy of reciprocity toward China. Affect good behavior by mimicking their bad behavior back at them. If they hack our military network, we hack theirs; if they hack a US company, we shut down one of their companies computer networks. If they build an island, we build one. If they manipulate trade policy, we do the same back to them. The trick is to make the reciprocity very obvious and public.

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