Recently, the news has been ablaze with growing tension in the S. China Sea. First, the U.S. held military drills with Philippines near islands Philippines disputes with China in the S. China Sea. Then Japan passed and the U.S. welcomed a new law that allows Japanese military to support U.S. air patrols and directly even carry out its own patrols in the S. China Sea. Then Japan and Philippines announced they would conduct their first military drills in the S. China Sea. And most recently, the U.S. decides to publicly challenge China’s assertion of rights on disputed islands by flying through those areas and releasing tapes of the verbal responses between the military.
There is no question among observers that the U.S. is ratcheting up the pressure on China in its assertion of sovereignty in the S. China Sea. (see e.g. some of our posts). But this latest round of military provocation is completely irresponsible.
Starting last year, the U.S. – with most notably Japan – has been calling out China as a hindrance to freedom of navigation. But I as I had noted in this piece last year, how can this be when:
China has never taken any actions or made any claims in the South China Sea that limits the freedom of passage. [China’s position of freedom of navigation in the S. China Sea] is made abundantly clear with China’s ratification of the UNCLOS in 1982 and its signing of the Declaration on the Conduct of Parties in the South China Sea in 2002 reaffirming its “respect for and commitment to the freedom of navigation in and overflight above the South China Sea.” Pursuant to a deadline set by the UNCLOS [on the limits of its continental shelves] 1, on May 7, 2009, China submitted a map and a letter to the U.N. detailing the extent and bases of its “nine-dashed” claim. When Philippines officials publicly expressed concerns about freedom of passage in the South China Sea, the Chinese government promptly reaffirmed declaring, “the freedom and safety of navigation in the South China Sea is assured.”
  |
If there is a concern about freedom of navigation arising from say China’s setting up of ADIZ last year, what about Japan’s ADIZ that is many times bigger than at of the China’s – or U.S. ADIZ that is even many more times bigger than that of Japan’s?
If there is concern that China’s claim of EEZ based on small islands reaches so far out from its main coastlines, what about Japan’s own EEZ stretching thousands of miles into the Pacific Ocean, based on historically tenuous claims to small islands spread thinly across the Western Pacific?
If there is a concern of freedom of navigation through China’s maritime claims, why is there no similar concern of freedom of navigation over:
Philippines’ dubious “picture frame” claims over a vast rectangular swath in the South China Sea as its “archipelago waters” and its controversial insistence of treating this swath as its “internal waters” 1 — thus explicitly repudiating any freedom of passage, including freedom of “innocent passage, through this vast area 2?
Or for that matter why is there no concern over Indonesia’s vast expenses of “archipelagic waters”? 3
List one instance where China has impeded others’ freedom of navigation as defined in the UNCLOS (by the way, freedom of navigation does not mean freedom of one military to conduct activities in nearby seas – and right up to say the 12 nautical mile territorial limits of nations – with reckless regards for the security and economic needs of other nations under the UNCLOS).
The U.S. has recently been citing China’s reclamation project as a problem that needs to be addressed. But I am not aware of any International Law or norm that places blanket prohibitions on nations from reclaiming lands – whether they be on islands, rocks or reefs.
Japan has been doing reclamation projects for decades in the Western Pacific. Philippines and Vietnam too have been conducting numerous reclamation projects across the S. China Sea, over disputed territories to boot, for years. But why cannot China … why is its reclamation all of a sudden criminal?
The notion that a rising China in itself is a menace is child play on words – a gem of modern “double speak”. If the strength of China per se can threaten freedom of navigation, what makes the U.S. or Japan not an equal threat – I mean a much bigger threat?
The consistent hypocrisy of U.S. policy and rhetoric is not lost on other commentators (see, e.g. this piece by Peter Lee in Asia Times, or this piece by Qinduo Xu in the Conversation or this piece by Robert A. Manning in National Interest or this piece by Stuart Leavenworth in Peace and Freedom | Policy and World Ideas).
Last week, US vice president Joe Biden told graduates at the Naval Academy in Annapolis that 60% of the United States Naval force will be stationed in the Asia Pacific by 2020 and that the U.S. will be a guarantor of peace in the Asia Pacific, that while the U.S. does not take sides in “territorial disputes” of other nations, it will stand up for “freedom of navigation and peaceful” and “equitable resolution to territorial disputes.”
So now, in one breath, the U.S. moves from the murky ground of being the ultimate enforcer of “freedom of navigation” and referee on the legality of land reclamation to the even shadier grounds of being the final arbiter of “equitable resolution of territorial disputes”… – all the while still posing with a straight face saying that it is not taking sides on local squabbles….
Last month, Obama stated in a forum in Kingston, Jamica:
Where we get concerned with China is where it is not necessarily abiding by international norms and rules and is using its sheer size and muscle to force countries into subordinate positions.
We think this can be solved diplomatically, but just because the Philippines or Vietnam are not as large as China doesn’t mean that they can just be elbowed aside.
But as Chinese Foreign Ministry spokeswoman Hua Chunying later observed in a subsequent press conference, “I think everyone can see very clearly who it is in the world who is using the greatest size and muscle.” She then politely urged the United States to act constructively in the region and reconsider its own history of bullying of other countries.
I wish George Orwell were alive today to see the clip of VP Biden speaking last week, or President Obama last month … or get know Edward Snowden or Julian Assange or see American activities in the Middle East the last few decades and American public’s complicity through all this. I think Orwell would have been surprised at how prescient he was some 65 years ago about the notions of Big Brother, doublethink, Newspeak, Room 101, telescreen of early 21st century.
Notes:
- Philippines ratification statement #7 (“The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.”) ↩
- See, e.g., http://www.rsis.edu.sg/publications/WorkingPapers/WP111.pdf, p. 17-19 (good summary of Philippines’ controversial claims) ↩
- See my paper for more on this. ↩
Allen says
Despite my problem with U.S. actions, one question I do want to open up for other is what is the basis of the Chinese assertion that the U.S. shouldn’t challenge Chinese airspace or territorial claims?
See, e.g. http://news.xinhuanet.com/english/2015-05/26/c_134272588.htm
The incident refers to Mischief Reef and I thought NY times was insightful to title its rebuttal to the Chinese position in an article titled “U.S. Flies Over a Chinese Project at Sea, and Beijing Objects”.
Even if Mischief Reef were undisputedly under Chinese control, can it have a territorial sea … or airspace? My understanding of Mischief Reef is that it’s what’s called “a low-tide elevation” under the UNCLOS, and according to Article 13, does not include a territorial sea (since its too far from other mainlands or islands).
China should article its positions better. Are we talking about historic waters? Are we talking about only UNCLOS defined water regimes? If UNCLOS – what? Is it talking about EEZ?
There is a long contention between China and U.S. about whether EEZ permits military surveillance. While China’s position may be in the minority, it is followed by many other nations…. (I personally don’t like this interpretation because I think China is strategically cornering its blue navy in the future….)
Even if the U.S. is right about the area being international space, that doesn’t mean the U.S. has a right to do what it does. Even in the high seas, the UNCLOS requires that “freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.” If China were to fly a plane right over a U.S. carrier, it would probably expect a response – even though it’s in open seas.
Black Pheonix says
I believe the basis is the fact that China established operations, both military and economic, in the area, and that in flying too close to such operations, US military patrols are in fact interfering with normal “freedom of navigation” of the Chinese ships.
It doesn’t have to arise to the degree of EEZ or territorial claim.
If a bunch of Chinese ships are conducting operations in open waters, US has prior notice of such operations, and US sends its own fleet in, it’s simply “crowding” the Chinese operations, and thus it’s interference with “freedom of navigation”.
It’s actually different than say, US surveillance flights near China, where China sends up interceptors, because in such case, there is no prior notice that US flights are going through the area.
In SCS, the Chinese ships have been there for months. That’s prior notice, that’s Chinese “freedom of navigation” and other operations.
(Now, some have argued that China is illegally dredging and building. ButI have to again point to “customary international law”, because that’s what other claimants, Vietnam, Philippines, are doing in the area for years.)
Ray says
The US always used different standard for different countries. It purports to take no side but it never once complained that Vietnam, Philippines, Malaysia etc have both military outpost and oil wells in disputed areas. This is dispite the fact that Vietnam and Malaysia’s installations overlapped with that of Philippines, which is supposedly a US ally. China currently has no oil wells in South China Sea.
The US itself also deal with altercation in international water differently. For example, the US navy shot down Libyan warplanes for being a threat to US warship and aircraft in international water.
“F-14s were involved in multiple U.S. military operations directed at Libya between 1980 and 1989. During this period, F-14s shot down four Libyan Air Force aircraft in two aerial engagements over the Mediterranean Sea.
On 21 September 1980, three F-14s from the Kennedy challenged eight Libyan fighters attempting to intercept a U.S. Air Force RC-135 reconnaissance plane two hundred miles from the Libyan coast. The Libyans disengaged once confronted by the U.S. Fighters.
In the summer of 1981, F-14s from VF-41 and VF-84 performed combat air patrols in support of Freedom of Navigation operations in the Gulf of Sidra. “
Of course, this is the US version of the incident and the Libyan version is rarely heard. And the US also used the pretext of protecting freedom of navigation to launch attack against Iran. See Operation Nimble Archer and Operation Praying Mantis.Operation Earnest Will. For example, when Saddam was still in US’s good book, although 37 US sailors were killed when the USS Stark was hit by Iraqi missiles, punitive action was not taken against Iraq. It is very obvious the US reaction is based not on the action but rather the country involved.
However, when dealing with the Soviet Union the US would refrained from escalating or firing. In 1988, the Soviet Burevestnik-class frigate Bezzavetnyy intentionally collided with USS Yorktown and Soviet frigate SKR-6 bumped the USS Caron in the Back Sea. Even today, Russian aircraft would sometimes overfly US warships in international water.
As the US never the ratified UNCLOS, its claims of protecting freedom of navigation is rather hollow. The US imposed a territorial air and sea space more than 12 nm from its shore.
Ray says
I also want to point out that UNCLOS concept of Freedom of Navigation treats civilian vessels differently from military ones. There is a concept that is called Innocent passage which is imposed on warships. And US warships operating in spying or training exercise cannot claim Freedom of Navigation if operating in the EEZ of another country. In fact it is the US breaking international law when US warships intrude into the EEZ of any nations.
Article19
http://www.un.org/Depts/los/convention_agreements/texts/unclos/part2.htm
Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
Allen says
So it seems like we are not dealing with “territorial space” here afterall … ?
The thing is that the Chinese gov’t seems pretty clear that it is talking about territorial space violations here. Even non-Chinese observers treat it that way. For example, in this RT opinion piece, it is noted:
Are we talking about islands that have been extended … or just underwater features that have been built up?
To me this is important. It’s hard to discuss issues when the fundamental facts are unclear … or at least seems unclear.
Allen says
Black Phoenix has been able to dig up some interesting photos.
Here is Philippines relcaiming island with military airstrip on Thitu island from google maps.
Here are a couple showing how much Vietnam has built up its fort on SouthWest Cay island:
(originally from here)
(originally from here)
Allen says
A few days ago I read this report from WSJ touting Ma Yin Jeu’s plan for peace – can’t we all share??? Can’t we shelf sovereignty differences and proceed on with sharing resources and development today?
Not reported anywhere in that article, or any others (see ex https://uk.news.yahoo.com/taiwans-president-propose-peace-plan-south-china-sea-042450602.html?.tsrc=warhol, or http://www.voanews.com/content/taiwan-president-urges-sharing-east-china-sea-resources/1594342.html) is that China had proposed that – and had gotten parties like Vietnam and Philippines – to sign joint development agreements – in 2005. But in 2008, the Philippines rescinded an agreement made just three years earlier between the Philippines, Vietnam and China and proceeded to unilaterally issue exploration licenses to the disputed areas. Vietnam followed suit. In 2013 , Philippines then decided to rely on legal proceedings instead of diplomacy to be the basis of negotiations. And now China is singled out for not sharing???
Ray says
I know Chagos Island is old news but the injustice still stand. When do the UK and US plan to fix the wrongs?
Stealing a Nation – Documentary
https://www.youtube.com/watch?v=pps66EDzc4g
https://www.youtube.com/watch?v=cM2-nCX9coo
WayneLo says
The US militarises the whole fucking world and invades countries left right and centre, causing up to a million deaths, and hundreds of thousands of people displaced, and then has the temerity to point the finger at China for ‘island’ building?
Even if these islands were actually in international waters, for arguments sake (I strongly believe China has an excellent claim over this body of water), what is wrong with building a few islands anyway, in order to facilitate transit, search and rescue etc. anyway?
And then the US talks about so called international law? Who made those laws in the first place –this so called right of navigation? Of course it was the Western powers themselves—in order to facilitate their plunder of the world.
When China has enough power, she should right these wrongs of the past, and simply ignore those unjust ‘international’ laws that they never had a part of in writing.
WayneLo says
Having said this, I am saddened by the scrap between China and Vietnam. Both are inheritors of great revolutionary and anti-imperialist struggles and China provided men (true) and munitions and inspiration to defeat both French and US imperialism.
If the US did not stir up shit as it is now doing, a lot of this stuff would not be happening.
I want to see the rise of the entire yellow race, although of course, China is always the motherland.