WRITTEN BY Julian KuThe US Navy’s plans to use military ships and aircraft to challenge China’s aggressive land reclamation activities in the South China Sea have led some to claim that the US is challenging China’s “sovereignty” or territorial claims. But while there is a real dispute brewing between the US and China that could indeed escalate into a sovereignty fight, the truth is we’re not there yet.
Maurice A. Deane Distinguished Professor
of Constitutional Law, Hofstra University
Maurice A. Deane Distinguished Professor
of Constitutional Law, Hofstra University
The bottom line: freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.”
The US Navy is simply asserting its rights to freedom of navigation under international law. Understanding this could help us defuse the growing tensions between the US and China in the region.
The bottom line: freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.” According to CNN, for example, the Pentagon is “carrying out the surveillance flights in order to make clear the US does not recognize China’s territorial claims.” In this story, the US Navy flies over the Chinese islands in order to challenge or reject China’s territorial claims. But in fact, the US Navy has tried to make it clear that they are merely conducting freedom of navigation operations, commonly used to assert international law rights of navigation against numerous countries around the world. It is NOT, as the CNN and other reports suggest, a challenge to China’s territorial claims.
The US Navy has already been conducting “freedom of navigation” operations for decades.
What is a freedom of navigation operation?
“Freedom of Navigation” operations involve sending US Navy warships into both the 200 nautical mile (nm) Exclusive Economic Zone and the 12 nm territorial seas recognized under the UN Convention on the Law of the Sea (UNCLOS).
The US Navy has already been conducting “freedom of navigation” operations for decades to enforce these views of international law. It even has a “Freedom of Navigation” website making public where it has been operating.
In the view of the United States, military warships and aircraft are free to conduct surveillance operations (e.g. spying) in any country’s 200 nm EEZ, and surface warships The US Navy has already been conducting “freedom of navigation” operations for decades. (but not military aircraft or submarines) have the right to “innocent passage” through a country’s 12 nm territorial waters.
The point of these operations is to publicly challenge any country which seems to be asserting unjustified legal rights under UNCLOS. China has a longstanding disagreement with this US interpretation of the law of the sea. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.
But the bottom line: freedom of navigation operations are not challenges to “territorial claims” or “sovereignty”; US Navy operations already assume that the other nation has “sovereignty” over the relevant coastline or island. So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand the standard transit rights.
What would constitute a territorial challenge?
Of course, it is worth noting that the US could soon escalate the dispute with China.
The US might take the view, for example, that China is building artificial islands on top of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”)
If so, then the US would fly within 12 nm miles or even directly over the artificial islands. Such operations would effectively be a direct challenge to China’s territorial claims, but they haven’t happened yet
“Challenging legal rights under UNCLOS” doesn’t make for very sexy headlines. But it is worth parsing media reports about US Navy activities in the South China Sea carefully, to clarify just how close the US Navy flies or sails to China’s reclaimed islands. For now, the US hasn’t challenged China’s territorial claims yet, and to claim that it has is only adding fuel to an already tense moment.
The guided missile cruiser USS Shiloh is anchored at Subic Bay on May 30, 2015, as part of an ongoing US military patrol in the South China Sea (AFP Photo/Robert Gonzaga)
Obama warns China against 'throwing elbows' in sea dispute
Washington (AFP) - US President Barack Obama on Monday weighed in on territorial disputes in the South China Sea, urging regional powers, particularly China, to respect the law and stop "throwing elbows."
"If you start losing that approach, and suddenly conflicts arise and claims are made based on how big the country is or how powerful its navy is instead of based on law, then I think Asia will be less prosperous and the Pacific region will be less prosperous," he said.
The United States does not hold any territorial claims in the South China Sea, Obama added. But as a "Pacific power" Washington has vocally called on China and other nations to end reclamation.
His administration has vowed to continue sending military aircraft and ships to the tense region to protect navigation rights.
"We think that land reclamation, aggressive actions by any party in that area are counterproductive," said Obama.
Turning to China directly, Obama adopted a boxing metaphor, saying "it may be that some of their claims are legitimate, but they shouldn't just try to establish that based on throwing elbows and pushing people out of the way."
Obama: land reclamation projects in South China Sea 'counterproductive' Reuters
China land reclamation in South China Sea creates 'new facts': U.S. Reuters
U.S. Kerry to take tough approach in China over South China Sea Reuters
U.S. says South China Sea reclamations stoke instability Reuters
US affirms 'ironclad' promise to defend Philippines AFP
Who’s a Bigger Threat to US? China or Russia?
The today’s global threat comes not from Russia, it comes from a confrontation between the United States and China, according to the British The Independent.
Spratly Islands raise most of the concerns today. This is the very spot where a confrontation between China from one side, and the US and its allies from the other side, has started. If the parties of the conflict are not wise and discreet about it, the conflict can easily spiral into a world war.
The stakes are high. These tiny islands are located at the very middle of one of the key routes of shipping traffic, the total amount of which amounts up to $5 trillion per year. Furthermore, this is a highly important fishing area, at the bottom of which rich oil deposits are likely to be found.
For many decades, China, Philippines, Vietnam, Malaysia, Taiwan and Brunei have insisted that all or part of the islands belong to them. But recently, the conflict has hit the critical phase.
China has initiated a large-scale construction process on the islands, expanding their territory and building airstrips and military bases. The US, in turn, is deeply concerned. Last week, Pentagon deployed a surveillance plane to one of the islands.
Washington has recently announced that it is planning to deploy its warships and warplanes to the 12-mile zone around the new Chinese military base.
The conflict needs to be resolved diplomatically as soon as possible as there will be a further escalation of the conflict in case China ignores the presence of the US warships.
Does the US has what it takes to get physical with China in order to not let the construction materials headed to the islands reach their destination? Or will these warplanes simply destroy the ships with the materials, as a large number of American politicians insist?
Soros: “The threat of world war becomes real”
American billionaire George Soros has recently warned about the high possibility of a new world war, which is going to begin between China and the US and would then involve the military partners of these countries – Russia and Japan.
According to Soros, if the US does not make “major concessions” to allow China’s currency join the IMF’s basket of currencies, “there is a real danger China will align itself with Russia politically and militarily, and then the threat of world war becomes real.”
“If there is conflict between China and a military ally of the United States, like Japan, then it is not an exaggeration to say that we are on the threshold of a third world war,” Soros said, speaking at The World Bank’s Bretton Woods conference.
However, it must be pointed out that the chances of a ‘classic’ confrontation between the US and China are low. Both countries understand the kind of undesirable damage they can do to each other.
Today, China still loses against the US in terms of military development. However, Beijing can still blow up a nuclear bomb at the coasts of the US, and the latter would go up in ashes. Not to mention what the US, for its part, can do to China. And each side of the conflict understands that.
Of course, China will apply its power in order to aid the loyal to Beijing forces win in this kind of conflicts. The US, for its part, will do just the same. That is a very likely upcoming confrontation between Washington and Beijing.
Is the US prepared to attack China?
What we see today is a new stage of global confrontation, and that is obvious. And May 9 was a clear evidence of that. The May 9 Victory Day parade in Moscow featured both the Chinese and Indian forces.
It was a clear demonstration that the BRICS countries (Brazil, Russia, India, China and South Africa) begin to transform from an exclusively economic union to a military-political one. The union transforms, and this union is anti-West.
There is already the BRICS bank and agreements of interstate trade without the use of US dollars. And the US, in turn, can only be concerned about major countries leaving the ‘dollar zone’.
However, China is the second (after Canada) key trades partner to the US with the annual trade turnover amounting up to $500 billion. It is first of all a mutually beneficial trade between the two countries, and second of all, a means for containment, which makes the whole situation highly contradictory.
China, for its part, doesn’t claim to be the world leader. However, the Chinese are very similar to the Western people in terms of mindset.
The Chinese think that China is the central empire, the center of the world, while the rest of nations are simply going through different stages of barbarity. This thought is not officially projected through the Chinese politicians, but can be widely heard from Chinese foreign politics experts.
It must also be pointed out that at the beginning of Barack Obama’s term, famous geopoliticians Henry Kissinger and Zbigniew Brzezinski suggested a special relationship between the United States and the People's Republic of China – Group of Two (G-2).
Basically it was a concept of a joint ruling over the world of the US and China. The Chinese declined the suggestion and Obama was forced to get back to the policy of containment. That is the exact reason why Washington has been establishing relations with Vietnam as well as a number of other small governments of the Southeast Asia. The US has been also trying to include Japan and Australia to their plans.