Is Taiwan the Next Hong Kong?
China Tests the Limits of Impunity
On January 29, the USS Curtis Wilbur, a guided-missile destroyer, sailed within 12 nautical miles of Triton Island, a Chinese-held islet in the South China Sea that is also claimed by Taiwan and Vietnam. Like the United States’ preceding freedom of navigation operation (FONOP), which took place in October, the Wilbur operation was meant to protest Chinese maritime claims that the United States and a number of Southeast Asian states consider excessive. But unlike the earlier mission, which was carried out by the guided-missile destroyer USS Lassen and which experts widely regarded as bungled, the most recent FONOP sent a clear legal message to Beijing and to the public. It also revealed important signs of support for U.S. freedom of navigation operations on the part of regional states.
By all appearances, in other words, Washington is finding its footing in the South China Sea. The United States can go further to sharpen its messaging and win regional support, though, by publicizing more information on its freedom of navigation activities and by building a multilateral coalition that supports them.
Island-building is not forbidden by international law, but as China has constructed small military bases on its outposts in the South China Sea, it has certainly crossed legal lines. In particular, it has claimed sovereign water and airspace around its artificial islands to which it is not entitled under the UN Convention on the Law of the Sea (UNCLOS).
To respond to such claims, U.S. policymakers have zeroed in on the freedom of navigation program, which is overseen by the State and Defense Departments and whose purpose is to contest claims to water and airspace that are inconsistent with UNCLOS. The long-standing program conducts dozens of so-called navigational assertions each year, many of them in Asia. There hadn’t been much activity in the Spratlys, though, until October 27, 2015, when the USS Lassen sailed within 12 nautical miles of Subi Reef—a contested artificial feature that was submerged at high tide until China began to build on it and that, according to most U.S. experts, is not legally entitled to a territorial sea.
Many analysts expected that, while it was within 12 nautical miles of Subi Reef, the Lassen would conduct military operations. These would have demonstrated Washington’s rejection of China’s claim to a territorial sea, where international law generally prohibits foreign military activity. It was later revealed that the operation was in fact more modest: it aimed to contest China’s demand that foreign military vessels seek permission before entering its territorial waters, which the United States declined to do. The poor messaging around the operation caused a kerfuffle in the U.S. expert community and raised questions among U.S. partners in Asia about the United States’ intent and seriousness. (The purpose of the FONOP was clarified in December, when U.S. Secretary of Defense Ashton Carter wrote a letter to U.S. Senator John McCain explaining its nuanced and initially obscure legal motivations.)
There was little such confusion over the Pentagon’s latest FONOP. On the day of the operation, the Department of Defense issued a detailed statement announcing that the Curtis Wilbur had transited within 12 nautical miles of Triton Island and that it had done so in a manner consistent with innocent passage. The purpose of the operation, in other words, was not to contest new Chinese claims to water or airspace; China, after all, has occupied the Paracels since 1974, and although it has conducted some land-reclamation projects on the island chain, it has not built any entirely new land features there. Instead, the latest FONOP again contested China’s demand for prior notification, which is held by only a handful of other governments around the world, including Taiwan and Vietnam. The Wilbur operation was similar to the Lassen passage with respect to its legal assertion and insofar as it transited features claimed by multiple states. Unlike the previous FONOP, however, this operation was apparently not leaked to the media before it took place, and the in-depth Pentagon statement that followed it has helped the U.S. government speak with a more unified voice regarding its purpose since.
Washington is finding its footing in the South China Sea.
Along with the flight of two U.S. B-52 bombers over the Spratlys in November, the latest FONOP demonstrates that the United States is making good on its pledge to conduct regular operations in the South China Sea. If the United States intends to convey to China that a U.S. presence in this disputed waterway is business as usual, maintaining this routine is a must.
TOWARD REGIONAL FON
Most of the media coverage of the Curtis Wilbur operation has focused on the legal message the United States sent to China and on China’s response that the FONOP violated international and Chinese domestic law. What few have noted, however, is that Vietnam, which also insists on prior notification and claims the Paracel Islands in full, called the operation a “positive and practical contribution to [regional] peace and stability” and reaffirmed the right of states to undertake such missions under UNCLOS. The endorsement is notable for a number of reasons. To begin with, although Washington and Hanoi have grown closer in recent years, Vietnam retains strong ties with China, and unlike many long-standing U.S. treaty partners in the region, it is often hesitant to publicly endorse Washington’s positions. (It stayed silent, for example, in the aftermath of the Lassen FONOP.) Hanoi’s choice not to reaffirm its traditional insistence on prior notification after the Wilbur FONOP—and, more strikingly, its public approval of the U.S. mission—suggests that it is increasingly interested in supporting efforts to push back against China’s claims.
Vietnam is hardly alone. Following the Lassen’s passage in October, several regional U.S. allies—Australia, Japan, the Philippines, and South Korea—also expressed support for the operation’s underlying principles, and both the Philippines and Vietnam protested China’s recent test flights to a Chinese-built landing strip on Fiery Cross Reef, another disputed feature in the Spratlys.
The United States’ regional allies have matched their words with actions. Australia has been conducting surveillance flights over the South China Sea, and Prime Minister Malcolm Turnbull suggested in January that the Australian military might conduct air or sea operations within 12 nautical miles of contested islands claimed by China. Japan has also announced that its own P-3 surveillance aircraft will patrol the South China Sea as they return from antipiracy missions off the Horn of Africa. In December, Singapore agreed to host a temporary deployment of a U.S. P-8 Poseidon surveillance aircraft, which will likely operate over the South China Sea. And last month, after a years-long wait, the Philippines’ Supreme Court upheld the 2011 Enhanced Defense Cooperation Agreement between Manila and Washington, paving the way for rotational U.S. military deployments at five new facilities in the country and for stepped-up joint training and exercises. The Philippines has since asked to conduct joint patrols with the United States in the South China Sea, a request on which Washington has not yet publicly ruled.
MAKING GOOD BETTER
Despite recent progress, there remain further steps that Washington can take to make its message on freedom of navigation more effective. To begin with, the United States should advance a longer-term multilateral approach to freedom of navigation based on cooperation among the ten member states of the Association of Southeast Asian Nations (ASEAN). On the sidelines of the annual summit of ASEAN defense ministers, for example, the United States and its Southeast Asian allies could share information on freedom of navigation infractions and coordinate their responses to them. U.S. President Barack Obama will host the leaders of the ten ASEAN nations at a summit in Sunnylands, California, on February 15 and 16; he should use that meeting to develop such an agenda. Doing so would institutionalize the positive regional response that followed the Lassen and Curtis Wilbur operations, encouraging regular multilateral cooperation on freedom of navigation issues.
The poor messaging around the operation caused a kerfuffle in the U.S. expert community and raised questions among U.S. partners in Asia.
Later this year, the International Tribunal on the Law of the Sea is expected to rule in favor of the Philippines in a case Manila brought against Beijing over Chinese claims in the South China Sea in 2013. The tribunal will likely support the Philippines’ assertion that many of China’s maritime claims in the South China Sea are illegal; China, meanwhile, will almost certainly not comply with the ruling. Beijing’s likely noncompliance will create an unprecedented opportunity for a U.S. public diplomacy campaign to rally regional support for the rule of law. The State Department should start preparing for such a campaign in advance. The Department of Defense, meanwhile, should conduct FONOPS that reinforce the decision once it occurs.
As the United States resumes regular operations in the South China Sea, the Pentagon should also report more frequently and thoroughly on its freedom of navigation activities. U.S. officials have said that Washington will conduct FONOPS in the South China Sea twice per quarter, but at present, the only data that the program releases on these operations is a fairly sparse annual report. The public should not expect a major statement after every FONOP, since the freedom of navigation program generally neither discloses its operations in advance nor discusses them afterward. Nevertheless, the Department of Defense should release information on U.S. activities in the South China Sea more regularly, perhaps semi-annually or quarterly. And it should work to provide more details in those reports, naming the island group that each FONOP targets rather than simply disclosing the countries whose claims a FONOP contests. It should also disclose some general information about the legal assertions its operations advance. How many FONOPS contested prior notification claims? How many contested spurious claims to territorial seas? Publicly addressing such questions would help Washington keep its messaging on freedom of navigation clear and consistent, and that would help the United States retain regional and domestic political support for its actions.
Finally, as the United States and treaty allies such as Australia and Japan conduct South China Sea operations more regularly, they should establish mechanisms to coordinate their patrols. By sharing information on their operations and the maritime claims they contest, Washington and its allies can send a coherent legal and normative message to Beijing and the wider region.
U.S. freedom of navigation operations are meant to be periodic legal assertions, not major demonstrations of force. On their own, they will not halt China’s efforts to extend its reach into the South China. Yet this limited potential makes their efficacy even more important, and clear messaging and multilateral support will be essential steps to that end.