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.