The South China Sea dispute has raised interesting questions concerning the right of passage of ships and aircraft. In recent months, U.S. officials have discussed the possibility of sending ships and aircraft within the territorial waters (12 nautical miles) of China’s claims in the South China Sea. This issue is receiving increased interest as in late August, a People’s Liberation Army Navy (PLAN) task force sailed into U.S. territorial waters off the Aleutian Islands. Additionally, James Kraska of CSIS’s Asia Maritime Transparency Initiative has written on the legal rationale and why the U.S. could and should sail into China’s territorial waters. Regardless, even if it is legal, the U.S. should exercise caution in whatever action it takes as such a move will undoubtedly be considered a provocation by Beijing.
China’s passage into U.S. territorial waters
In late August, a PLAN flotilla consisting of three warships, one amphibious ship and a supply ship, sailed within 12 nautical miles of the Aleutian Islands. These ships had recently taken part in joint exercises with the Russian Navy as part of Joint Sea 2015. While the situation received widespread attention as it was a move not typical of the PLAN and viewed by the media as a provocation, the fact is that, under international law, it was legal.
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Countries are allowed to transit the territorial seas of other countries under the right of innocent passage. This is codified in the UN Convention on the Law of the Sea (UNCLOS), which states: “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.”
The response from Washington was rather tame and rightfully so, as the PLAN ships transited in a legal manner. Some speculate though that the cool response was also meant to show to Beijing that Washington will not protest activities that are legal under international law; perhaps as a way to encourage Beijing to do the same.
U.S. considering sailing into China’s claimed territorial waters
In May, Secretary of Defense Ash Carter instructed his staff to look into options for sailing within 12 nautical miles of China’s possessions in the South China Sea in addition to sailing within the EEZs of them. Under official U.S. policy, which does not recognize China’s claims in the South China Sea, being that the man-made islands are not considered sovereign territory, there should theoretically be no problem with pursuing such an action.
So far, the U.S. has abstained from doing so, partly as a way to avoid escalating tensions and partly to what some consider is the tacit acceptance by the White House of China’s unlawful claims in the region. In late May, a U.S. P-8 surveillance aircraft, despite flying beyond 12 nautical miles of Fiery Cross Reef, was warned by Chinese officials to “go away quickly.” Fiery Cross Reef is the site of Beijing’s most ambitious artificial island building and will soon host a large airfield. While the aircraft was in legal airspace, China nonetheless protested. In late July, it was reported that the White House had squashed plans of Carter had sought in May.
The issue the U.S. is facing is multi-faceted. On one hand, the incident with the P-8 occurred over international airspace, and regardless of if Fiery Cross Reef is considered sovereign territory or not, it was still warned away. This is not the first time China has protested the presence of a foreign aircraft or ship in a region that is widely considered international and open to travel. The other problem is if China’s artificial islands can even be considered sovereign territory; ultimately their status might dictate that international law on maritime boundaries is inapplicable to them.
Maritime boundaries and China’s islands
Extending 12 nautical miles from a land mass is the territorial sea of a country. A further 12 nautical miles from that limit is considered the contiguous zone. Finally there is the exclusive economic zone (EEZ) which extends 200 nautical miles out from the coast of a landmass. How these relate to China’s islands in the South China Sea is up for debate as reclamation activities have completely changed the nature of the islands.
Under UNCLOS, low-tide elevations in the mid-ocean do not qualify for any maritime zone. Many of China’s possessions in the South China Sea were once sand bars or small reefs that were submerged at high tide. Furthermore, despite China’s ambitious land reclamation project, artificial islands are not entitled to sovereign maritime zones, regardless of their size. It has been argued that China’s possession as a result has neither an EEZ nor territorial seas.
If the U.S. is to send its ships into the claimed territorial waters of China’s South China Sea possessions while following the guidelines of innocent passage, the action would be legal under international law. How would China respond though? History has shown that in similar cases, China’s response has been negative and warnings have been issued. China, though, cannot be hypocritical. A flotilla of its warships recently sailed in U.S. territorial waters without harassment, much the same way in 2014 when one of its spy ships spied on the RIMPAC naval exercises within the EEZ of Hawaii.
While sailing through a claimed Chinese EEZ or territorial zone might be legal, the question is should the U.S. do so? A restrained response from China is not guaranteed and with the upcoming visit by Xi Jinping to the U.S., unnecessary antagonisms should be avoided. On the other hand, if China were to protest such a move by the U.S. while Xi is in the U.S., he would be hard pressed to explain the hypocrisy of his government.