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Should the US patrol around China's artificial islands?

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In Brief

The US defence establishment's provocative plan to assert freedom of navigation by patrolling near China's artificial islands in the South China Sea appears to have stalled. But if the United States abandons the policy it will forego an important opportunity to help stabilise Asia’s contested waters.

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In May, Secretary of Defense Ashton Carter reportedly asked the US military to develop plans to send planes and ships within 12 nautical miles (nm) of China’s new installations — the radius of territorial sea and airspace granted to legitimate territorial features under international law.

The intended effect would be to demonstrate that land reclamation does not create new areas of sovereign territorial seas, cautioning Beijing against any future attempt to institute exclusive military control in these areas. This month, US defence officials reiterated their desire to carry out the plan. But so far no patrols have been conducted.

Some analysts have expressed concern that such freedom of navigation (FoN) operations would spur the militarisation of the area or, worse, provoke Sino–US confrontation. Similar misgivings in Washington are likely part of the explanation for the lack of implementation so far.

If conducted on the basis of careful research and clear communication, such a policy could show that the United States is willing to act in a measured way to uphold universally accepted international rules in the region. In the process, it would demonstrate limits to China’s ability to create new ‘facts on the water’.

Ensuring FoN operations in the Spratlys are constructive rather than destabilising depends first and foremost on making them scrupulously legal.

The key would be to make certain that US ships and aircraft only pass within 12 nm of those artificial islands built on features that were naturally underwater at high tide. One example is Mischief Reef, where China has created more than five square kilometres of new land. Island-building activities are not necessarily illegal. But no matter how much sand is dumped on these ‘islands’, the waters around them have no legal territorial sea status.

On this point, international law is, thankfully, unambiguous. Article 60 of the UN Convention on the Law of the Sea (UNCLOS) explicitly states that artificial islands ‘have no territorial sea of their own’. Patrols within 12 nm of such submerged features would be on safe legal grounds and could not be construed as a violation of any country’s territorial waters.

At the same time, UNCLOS is equally clear that even small ‘rocks’ may be entitled to 12 nm of sovereign territorial sea — provided they naturally protruded above the waterline at high tide. Fiery Cross Reef, where China has built a 3000 metre runway, is one such feature. American FoN patrols should not enter within 12 nm of this or any other disputed feature without producing strong evidence that it was, in fact, entirely submerged in its natural state.

Carefully differentiating between different legal categories of features would answer the region’s desire for the United States to support a rules-based order in maritime Asia, while not becoming a source of additional tensions.

The second key to constructive US patrolling is fairness. Patrol routes must show they are not targeted at China but at upholding the principle (or ‘rule’) of open access for all. Patrols navigating within 12 nm of Chinese installations should also pass by one or more of the other South China Sea claimants’ outposts on non-territorial features, thereby asserting the ‘rules’ in an equitable way.

Vietnam occupies several features that its officials freely refer to as ‘submerged’, which are accordingly not entitled to territorial seas under international law. Second Thomas Shoal, home to the Philippines’ outpost aboard a disintegrating World War II-era transport ship, is also probably in this category, as is Ardasier Reef, occupied by Malaysia since 1986.

Another concern is that close-in patrolling could prompt China to install more weaponry on the islands. No doubt, if Beijing feels its new outposts are being threatened, this will increase its motivation to arm up.

But FoN patrols would only need to puncture the 12 nm radius around the ‘islands’ to serve their purpose — they do not need to, and should not, approach any country’s installations. Entering the zone, but refraining from pressing further, would clearly signal that the purpose is to demonstrate that no territorial seas exist, as per international law, rather than threaten any state’s positions in the area.

Finally, US patrols would be unlikely to unleash an uncontrolled nationalistic fervour that pushes Beijing into an irrational spiral of escalation. US ships or aircraft traversing within 12 nm of artificial islands would only become a major issue for the mainland public if state media coverage made it one. Even then, the Chinese public at large is more rational than commonly assumed when it comes to these offshore issues. Confrontation, would not necessarily be the preferred choice for the Chinese public.

Thanks to the clear language of UNCLOS, no country can claim foreign patrols around naturally submerged features in the South China Sea violate their territorial waters. This makes FoN operations through these areas a useful move. At a glance it may look like brinkmanship, but it is relatively low-risk as it is backed unambiguously by a legitimate international legal regime. Done right, it could even constitute one small step towards a genuine rules-based maritime order.

Andrew Chubb is a PhD student at the University of Western Australia, researching Chinese public opinion and maritime disputes in the South China Sea and East China Sea. He blogs at South Sea Conversations.

7 responses to “Should the US patrol around China’s artificial islands?”

  1. I love how these mouth pieces of the US pretend to uphold some type of international order. The biggest problem is, US itself is not a signatory of the UNCLOS, because it doesn’t want other countries venture along its coastline. The US also didn’t intervene at all when other countries did land claims on other reefs. So US wants to enforce an “international law” which applies to only China and nobody else? This seems like typical Western hypocrisy to me.

  2. Thanks for reading.

    The “international law” you refer to, UNCLOS, is far from a tool of western hypocrisy. On the contrary it was designed to protect developing countries’ rights to maritime resources. That is why 166 of the world’s states have signed & ratified it.

    So a key point the article makes is to ensure the U.S. acts in accordance with the UNCLOS (which it has not ratified but did sign and says it accepts) as it responds to these substantial Chinese moves in the disputed area.

    As for applying it “to China and nobody else”, if you have a read of the article, you will find it argues precisely the opposite of that,

  3. US Navy warships and the naval and civilian vessels of multiple nations from around the world have passed through these waters and used them for whatever purpose they chose, for hundreds of years. The fact that Chinese sailors might have visted these islands a thousand years ago doesn’t make them Chinese. The Scandinavians visted N America 600 years ago. However if you’ve noticed its not a Scandinavian country.
    India does not own the Indian Ocean, Mexico does not own the Gulf of Mexico and China does not own either the East China Sea or the South China Sea.

  4. The argument made in this article is rational. However, it is almost certain that the US will not follow most of the suggestions because the major concern of US is not what it claims, aka “Freedom of Navigation”. Just as US did with the First Island Chain strategy, the purpose is to contain China’s ability to project its power beyond what US feels comfortable and maintains the US hegemony around the world. “Freedom of Navigation” is a convenient excuse to hide the true intention of US from the international community and why would the US get rid of this excuse themselves?

  5. The article has a few interesting issues itself. The opening line “The US defence establishment’s provocative plan to assert freedom of navigation by patrolling near China’s artificial islands in the South China Sea” is worth noting. The question is that before US’ action, had there been any issue of the FoN in the South China Sea to date? The author has used ” provocative” plan and “asset” FoN to make a point, which hopefully may have explained why US appears to have abandoned the plan according to the author. If there has been no case of impact on FoN in the South China Sea, why should there be any action to take. The question needs to be asked “what does the plan aim to provocate?” Another interesting point is that if as the article says ” land reclamation does not create new areas of sovereign territorial seas”, why is it necessary to risk the peace in the region by pursuing the provocative plan?

    • Thanks for your comment.

      I agree that FoN in the South China Sea has not been affected by the PRC reclamation activities so far, but it’s still early days. Moreover, the PRC’s warnings to US & Philippines aircraft earlier in the year that a “military alert zone” (not a known legal category) exists, from which they must “leave immediately”, strongly suggests that FoN is a looming potential problem.

      The purpose of FoN patrols is maintaining open access, so the idea is to prevent potential restrictions on FoN before this occurs. The point of the article was that if this is done in strict accordance with universally recognized international law, and without targeting China, then it would not be provocative after all.

    • Indeed, FoN has been violated by China often to date with numerous Filipino and Vietnamese fishing boats rammed, sank and people killed just for making their living within respective EEZ’s. Recent Chinese artificial projects are different and aggressive, and thet intend to project military power with thousand-folds expansion. Meanwhile, Filipino, Malaysian and Vietnamese are mostly, building garrisons, maintaining structures and manually, constructing wave-breakers.

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