Do Freedom of Navigation the Right Way

The United States has defended the freedom of the sea for decades and has been willing to use force to ensure that freedom of navigation in accordance with international law is not restricted. There is currently an intense debate over what the US Navy should do in response to Chinese land-building in the South China Sea. While China has declared these new islands, built upon reefs and atolls that previously never broke the surface at low tide to be their territory, and have been since “ancient times,” the status of the waters within 12 nautical miles does not qualify as “territorial waters” under international law. While China has not yet officially declared the waters within 12 nautical miles to be their territorial waters, constant rhetoric coming from retired PLA officials and the occasional Communist Party mouthpieces, like the Global Times or People’s Daily, have continued to conflate waters within the so-called “nine-dash-line,” China’s Exclusive Economic Zone (EEZ), territorial waters, and “blue territory,” using the terms interchangeably, and currently accuse the US of “militarizing” the South China Sea and threatening China’s sovereignty.

It is obvious that whatever the United States does, the more bellicose elements within China will never be happy until the US has removed itself from Asia. Yet, at the same time, we must recognize that this is just a vocal portion of the Party and there exists a large community that does not want to seek conflict with the United States. Yet, if the US takes action against Chinese claims alone, this will strengthen the more bellicose wing and they will use the accusation that the US is “militarizing” the South China Sea to go forward with their own militarization, making the entire area more dangerous and threatening peaceful maritime trade. This is not to say that the US should not conduct freedom of navigation exercises and submit to Chinese claims, but should do so with more tact and understanding of the politics within China and the Southeast Asian region.

The Spratly Islands within the South China Sea are claimed by six different governments, not only the Chinese government in Beijing, but also by Vietnam, Malaysia, Brunei, the Philippines, and Taiwan. Out of these, all but Brunei hold some territorial features in the South China Sea, with China, Vietnam, Malaysia, and the Philippines all claiming features that do not qualify for territorial waters under international law.[1] Within China, it was seen as a break from traditional US China-bashing when Defense Secretary Carter stated at this year’s Shangri-La dialogue “There should be an immediate and lasting halt to land reclamation by all claimants [Emphasis Added][2]” because, from their perspective, the US typically only calls out China for its actions while the other countries get a pass. When the US conducts its freedom of navigation operations around the Spratly Islands in the near future, they should also sail within 12 nautical miles of the other claimants’ underwater features as well, and publish their actions accordingly. While this will still be seen negatively by the Chinese, especially the more aggressive faction, the inclusion of other countries will dilute the perspective that the US is only targeting China among the more moderate factions. In addition, by being more public about other freedom of navigation operations the US Navy conducts, such as those against other countries in the region like India, Indonesia, Malaysia, Philippines, South Korea, and Vietnam which all claim excessive territorial and inland waters, [3] the US can show that it treats China no differently than any other country which flouts international law.

By being less openly confrontational and not singling out only China, we reduce strategic risk while still enforcing international law without sacrificing ideals. The two loudest of the other claimants, Vietnam and the Philippines, are unlikely to react to US freedom of navigation operations in a manner that will affect relations, the Philippines because it relies heavily on US military support, both in the South China Sea and in their south against Islamist insurgents, and Vietnam because they are working to balance China by coming closer to the US as evidenced by their support of the Trans-Pacific Partnership. Malaysia has typically tried to stay relatively neutral in the dispute publicly, and therefore the US should not expect a strong reaction. Thus, the US can still challenge China without risking other relationships, but still limit the accusations that come out of China.

Throughout history, war between a rising power and an established power typically happen when both sides view it as either not possible or inevitable. When both sides are aware of the risk and constantly work to reduce tension, the threat of war is reduced.
[1] Chubb, Andrew. “The South China Sea: Defining the Status Quo,” The Diplomat. 11 June, 2015. [http://thediplomat.com/2015/06/the-south-china-sea-defining-the-status-quo]
[2] Carter, Ash. 30 May, 2015. “The United States and Challenges of Asia-Pacific Security.” [http://www.iiss.org/en/events/shangri%20la%20dialogue/archive/shangri-la-dialogue-2015-862b/plenary1-976e/carter-7fa0]
[3] DoD Annual Freedom of Navigation (FON) Reports. [http://policy.defense.gov/OUSDPOffices/FON.aspx]