Game changer: America vs China in the West Philippine Sea

Manila, Philippines – America’s deployment of destroyers means that China’s leadership is bound to come under tremendous pressure to respond accordingly. This is a battle for leadership in Asia.

After hesitating for years, the United States has finally decided to openly challenge China in the West Philippine Sea, deploying destroyers into the 12 nautical miles radius of Chinese-occupied land features in the area. Throughout the last two years, China has frantically built a sprawling “great wall of sand” across the Spratly (Kalayaan) islands, changing the facts on the ground without confronting any significant resistance.

Utilizing state-of-the art technology, China has artificially reclaimed 20 times more land than all other claimant countries combined in the last four decades. China hopes that these construction activities will bolster its sovereignty claims (see Art.7 and 47, Paragraph 4 of UNCLOS) in the area and allow it to better project power against other claimant states. There is no moral, legal, and technological equivalence between China’s reclamation activities and that of other claimant states in the area.

Given the massive power asymmetry between China and its smaller neighbors, only the United States has the wherewithal to challenge Beijing’s unremitting quest for maritime dominance in East Asia. And to the delight of its Asian allies, particularly the Philippines and Japan, the Obama administration is finally drawing a line in the sand, challenging China’s great wall of sand in one of the most vital Sea Lines of Communications (SLOCs) on earth.

On the surface, the US is simply engaging in routine operations to ensure freedom of navigation in the West Philippine Sea and beyond. It is easy to dismiss America’s latest move as calibrated saber-rattling to calm the nerves of anxious allies.

A closer look, however, reveals the dramatic nature of America’s latest maneuver aimed at reining in Chinese maritime assertiveness. Like never before, America is directly challenging China’s sovereignty claims in the area, even if this carries the risk of heightened Sino-American tensions ahead of the APEC and ASEAN summits next month, if not potential clashes between American and Chinese armed forces. No less than the future of the Asian order hangs in the balance.

Maritime Commons
Despite all the advancements in technology and land-based infrastructure, about 90% of global trade is still carried through maritime routes.

The South China Sea is an artery of global trade, facilitating $5 trillion in international trade, $1.2 trillion of which is bound for the United States. It also serves as a key transit route for the bulk of the energy imports of major Asian economies such as Japan, South Korea, and China. Unlike the Persian Gulf, which is also a major transit point for hydrocarbon trade, the South China Sea is vital to the global food supply, accounting for as much 10% of world fisheries supply. Hundreds of millions of people across the region depend on the West Philippine Sea for their daily diet.

During his intimate retreat with President Barack Obama back in 2013, Chinese President Xi Jinping boldly claimed, “The vast Pacific Ocean has enough space for two large countries like the United States and China.” Reinforcing lingering suspicions that he was perhaps calling for a Sino-American co-dominion in the Pacific theater, the Chinese leader proposed a “new model of great power relations,” where Washington and Beijing will effectively treat each other as peers with respective zones of influence in the area.

To be fair, Xi’s proposal for a new regional order – what I have called Pax Chimerica – was based on an earlier joint statement between the Hu Jintao administration in China and the newly-installed Obama administration, which has framed Sino-American relations as “the most important bilateral relationship in the world.”

The November 2009 joint statement between the two powers quite controversially stated, “The two sides agreed that respecting each other’s core interests is extremely important to ensure steady progress in US-China relations.” For Beijing, one of those “core interests” is safeguarding China’s territorial integrity and sovereignty claims, which have progressively expanded from peripheral restive regions such as Tibet and Xinjiang to Taiwan and, in more recent years, much of the South China Sea.

Unlike other maritime superpowers throughout history, from Netherlands and Britain in early modernity to the United States today, China, however, is treating adjacent waters as an extension of its continental territory, its national “blue soil”. This is nothing short of a strategic coup against modern maritime international law, which, based on the works of the legendary Dutch legal philosopher Hugo Grotius, strives to ensure ‘open seas’ for the purpose of international commerce and peace.

Law and disorder
Refusing to acknowledge China’s sovereignty claims over artificially-created islands in the area, the United States Navy’s (USN) guided-missile destroyer (USS Lassen) has pierced into the 12 nautical miles radius of Beijing-occupied land features on a regular basis. It is a move that is both urgent and risky, simultaneously carrying the promise of reining in Chinese maritime assertiveness and provoking a confrontation with Asia’s superpower.

Though Washington has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), thanks to the intransigence of some members of the U.S. Senate, the USN observes the relevant provisions of the UNCLOS as a matter of customary international law. No wonder then, Washington has allowed Chinese military vessels to pass through its EEZ in the Pacific as well as 12 nautical miles territorial sea off the coast of its Alaskan territories. Together with its allies, Washington has undergirded freedom of navigation across the globe, securing the foundations of unimpeded international trade and maritime security.

Although China is a signatory to the UNCLOS, it has repeatedly sought to impose restrictions on the entry and movement of foreign military vessels and aircrafts well beyond its territorial sea. And in clear contravention of UNCLOS (see Article 60), it has engaged in a sweeping reclamation activity across the Spratly chain of islands, permanently altering the nature of disputed features well beyond its EEZ and continental shelf.

Against the backdrop of the glaring gap between China’s actions and its legal obligations, the United States (a non-signatory to the UNCLOS) is, quite ironically, invoking UNCLOS as a basis to challenge China’s sovereignty claims in the area.

On paper, the United States professes neutrality on the sovereignty claims of competing claimant states in the South China Sea. But its recent decision to conduct freedom of navigations operations – deploying surveillance vessels and possibly even reconnaissance aircrafts – within the 12 nautical miles radius of China’s artificially-created islands represents a de facto rebuke of China’s territorial claims in the area.

The showdown
The UNCLOS (Art. 18, Sec. 3, Part II) provides “continuous and expeditious” right for innocent passage for foreign vessels within the territorial sea of a coastal state. But this principle doesn’t apply to activities that are “prejudicial to the peace, good order or security of the coastal State,” including “any act aimed at collecting information to the prejudice of the defense or security of the coastal State.”

In short, the UNCLOS doesn’t provide American military vessels the right to engage in surveillance operations within the 12 nautical miles of Chinese-occupied islands. China considers such activities as prejudicial to its interests.

“There is no way for us to condone infringement of China’s territorial sea and airspace by any country under the pretext of maintaining the freedom of navigation and overflight,” the Chinese Foreign Ministry warned in response to America’s decision to conduct freedom of navigation operations within the 12 nautical miles radius of Chinese-held features. This means the United States is essentially challenging China’s sovereignty claims to these islands.

China has been engaged in reclamation activities practically across all the features (Fiery Cross, Hughes, Cuarteron, Gaven, Subi, Johnson, and Mischief Reefs), under its control in the Spratly chain of islands. None of them are considered by legal experts as naturally-formed “islands” (see Art. 121 of UNCLOS), with at least three of them (Gaven, Subi and Mischief reefs) considered as low-tide elevations, which are not entitled to any territorial sea of their own (see Art. 60, Part V and Art. 13, Sect. 2, Part II of UNCLOS).

Deploying freedom of navigation operations within the 12 nautical miles radius of these features doesn’t violate international law, since they were originally low-tide elevations. (This is why it is important to watch whether American will also challenge China in the Fiery Cross, the commander-and-control center of China’s activities in the area, which is widely considered as a rock that can generate its own territorial sea.)

The duration, frequency, and depth of these operations will also determine China’s counter-measures. Beijing has a wide range of options to respond to America’s challenge. It could buzz American vessels with jetfighters, or/and deploy an armada of para-military forces backed up by conventional naval forces. The two powers have a wide range of sticks to stare down each other without triggering all out conflict.

Historically, the USN conducts freedom of navigation operations away from the limelight. But this time is different, especially with the world carefully watching America’s next action. This also means that China’s leadership is bound to come under tremendous pressure to respond accordingly. This is a battle for leadership in Asia./