CASS Scholar Xue Li: The U.S. Ship Came Within Twelve Nautical Miles, Now What Should China Do?

The U.S. Ship Came Within Twelve Nautical Miles, Now What Should China Do?

[美舰进“12海里”,中国怎么办?]  from Financial Times Chinese language website, October 28, 2015   Chinese text at http://www.ftchinese.com/story/001064579?page=rest

By Xue Li, Director of the International Strategy Research Office, World Politics and Economics Research Institute of the Chinese Academy of Social Sciences.

China’s Policy Position

China has long held the position that the coastal state has, in addition to economic rights in its exclusive economic zone (EEZ), the right to due regard from other states, especially in matters affecting national security. Therefore China opposes the use by other countries of China’s EEZ to conduct military activities harmful to China’s national security.  Therefore, Section 11 of the “PRC EEZ and Continental Shelf Law” passed in 1998 stipulates that “any state, as long as it complies with international law and PRC law and regulations is free to sail or fly in the PRC’s EEZ”.  However, China has not clarified and publicized with just which PRC laws and regulations that foreign vessels and aircraft must comply.  Moreover, the United Nations Convention on the Law of the Sea (UNCLOS) does not clearly stipulate whether military vessels are permitted passage through territorial seas.  Section 17 mentions that “with the limits provided by this Convention, the vessels of all states, whether they are coastal states or landlocked states all have the right of innocent passage in territorial seas”.  This can be interpreted as meaning all vessels, including military vessels, enjoy the right of innocent passage.  However, Section 30 also stipulates that “if any military vessel does not observe the laws and regulations of a coastal state with respect to passage through its territorial waters, and does not comply with the request of the coastal state to that vessel to comply with laws and regulations, then the coastal state may demand that the military vessel immediately depart from its territorial waters”.  This can be interpreted as meaning that the right of any non-coastal military vessel to pass through the territorial waters of a coastal state is determined by the domestic legislation of the coastal state.  This kind of ambiguity occurs in several places in UNCLOS.   Chinese law restricts the right of innocent passage of military vessels in Chinese territorial waters.  Section 6 of the PRC Territorial Waters and Continental Shelf Law passed in 1992 stipulates that “Foreign military vessels may enter PRC territorial waters only if they obtain permission from the PRC government”.  This Chinese position is fairly common among developing countries.  Nearly all the ASEAN states have a similar position.

The Chinese Navy during the 1980s moved from coastal defense to near seas defense.  Now the Chinese Navy is moving from near seas defense to near seas defense plus escort duties in distant seas.  As China’s national power increases, it is only natural that the Chinese Navy reaches out to distant seas.  Over the past several years, the Chinese Navy has appeared in the EEZs of several countries (for example the EEZs around U.S. islands of Guam and Hawaii and the EEZ in Japan’s Miyako Strait.   Since 2015, the operations of the Chinese Navy have become even more interesting:  in May 2015 the Chinese Navy conducted a jointed exercise with Russia in the Mediterranean.  This means that China believes that it has the right to conduct military exercises in the EEZs of other countries.  In early September, five Chinese Navy vessels passed through the internal waters of the U.S. in the Aleutian Islands without first obtaining the permission of the U.S.  The Chinese Defense Ministry spokesman said that this strait is used for international navigation and so Chinese Navy vessels exercised their right of transit passage.  Therefore China’s position on marine military activities is already essentially identical to the U.S. position.

In theory, China has the right to conduct a military exercise in the U.S. EEZ near the U.S. naval base in San Diego.  And the U.S. has the right to conduct a military exercise in the Chinese EEZ off the Chinese military base of Yulin Harbor in Hainan.  However, doing that would be a fairly big provocation and could be interpreted as a threat to the national security of the coastal state and inflame popular opinion.  Therefore, major powers generally avoid doing such things.  The history of the Cold War also shows that while the U.S. and the USSR often made close range reconnaissance of one another, they both avoided doing large scale military exercises in EEZs near important military harbors.

No Conflict Will Break Out in the South China Sea

Many people believe that China and the U.S. might have a conflict in the South China Sea.  I do not agree.  The South China Sea issue is not a core interest of either China or the U.S.  U.S. policy objectives in the South China Sea are:  implement power balancing to prevent a conflict from breaking out and maintaining its own role as an “off shore balancer”.  Chinese policy objective in the South China Sea are: protecting its own proper interests but avoiding a war that could disrupt the process of China’s peaceful rise. This means that neither China nor the U.S. want to go to war in the South China Sea and that they are capable of managing crises so that a large scale conflict will not break out.  Even if some accident occurs, they will be able to prevent it from escalating and deteriorating further.

However, the South China Sea issue has already become a “three dimensional game”.  China and the ASEAN claimant countries comprise the first layer.  China and ASEAN comprise the second layer.  China and the U.S. comprise the third layer.  Moreover, ever since the “Drilling Platform 981” incident in 2014, the signs of U.S. getting involved in the South China Sea issue have becoming more and more evident.  In addition to supporting the ASEAN claimant countries, the U.S. also encourages international organizations and countries such as ASEAN, the G7, India and Japan to speak up and get involved.  The U.S. itself has moved from “behind the scenes support” to “getting directly involved”.  We see this in U.S. position towards Chinese land building in the Nansha Island.  The U.S. has sought through many channels and by repeated requests of various kinds to constrain China’s land building activities at the “eight points on seven coral reefs” 七礁八点 in the Nansha Islands.  The U.S. finally made a direct request to China to stop land fill and follow-on construction.

After sending a P-8A anti-submarine aircraft to make a high profile flight over the EEZ of the reefs where land fill activities were underway in order to stir up public opinion to put pressure on China, the U.S. in mid-October 2015 announced that it would enter into the 12 miles marine zone surrounding the reefs on which land had been built.  On October 26, the U.S. sent the  destroyer USS Larsen to within 12 nautical miles of Mischief Reef and Subi Reef.  This attracted a great deal of international attention and the Chinese Foreign Ministry has made several statements about it.   Therefore, how we respond to the U.S. military “entering within 12 nautical miles” is especially important.  This kind of action by the U.S. Navy requires the approval of the U.S. National Security Council.  The route, time, personnel deployments and vessel are all chosen in advance with great care. Therefore we should analyze the question on several different levels.

Analysis of the U.S. Vessel Entering within “Twelve Nautical Miles”

If a U.S. naval vessel or aircraft “speedily and continuously without stopping” sails or flies through the area, then that is a matter of innocent passage allowed under the “UN Convention on the Law of the Sea” and so did not violate Chinese sovereignty.  China has no need to and indeed cannot really oppose this action.  Making a diplomatic statement is sufficient, but that is another matter.   It is worth mentioning that Japan considers that Chinese government fisheries enforcement vessels carrying out law enforcement activities within 12 nautical miles of the Diaoyutai Islands [Tr. Note: aka Senkakus] are exercising “innocent passage” and that therefore believe that the status of those waters has not changed.  However, the Japanese government takes measures such as expulsion towards Chinese fishing boats that enter within 12 nautical miles. The reason could well be that article 19 of the UNCLOS explicitly excludes fishing from “innocent passage”.

Four of the seven reefs (Huayang reef, Johnson South Reef, Yongshu Reef, and Hughes Reef) are above sea level at high tide and so are generally considered to be islands and enjoy 12 nautical mile territorial seas but whether or not they are entitled to an EEZ has not yet been settled.  Three of the reefs (Mischief Reef, Gaven Reefs, and Subi Reef) are underwater at high tide but appear at low tide.  UNCLOS does not stipulate that manmade structures built on land that appears at low tide is entitled to any kind of waters.  However, the practice of international law is that (as in the case of the boundary line in the Black Sea between Romania and Ukraine) and the views of most experts on international law, that an artificial reef, facility or structure built on land that appears only at low tide is not entitled to 12 nautical miles territorial zone but may have a 500 meter security zone.   As for these three features that appear only at low tide, even if the U.S. had stopped or anchored outside the 500 meter security zone, there would have been no violation of international law.  This is even less so in the case of the transit of the USS Larsen.  Therefore, in this case China has no need to take action. Naturally, China could choose to make some diplomatic reactions such as calling in a U.S. diplomat, following the military vessel and keeping it under observation.  This despite the fact that the time the U.S. chose to do this could be considered not to have shown “due regard”.

Moreover, determining the 12 nautical mile zone and the 500 meter security zone are also issues.  According to reports, the land fill operations in the eight points on seven reefs have a total area of 2900 acres or about 11.74 square kilometers or an average of 1.5 square kilometers for each one. Proceeding from that assumption, the breadth of the landfill on each reef is over one kilometer.  If the land boundary is calculated from where it is after the landfill for the purpose of determining the territorial seas or the safety zone, the U.S. will disagree.  If it is calculated from the pre-landfill reef (or the center point of the land that emerged at low tide), then that might run contrary to the purpose of the land fill in the first place.

The USS Larsen chose for a brief period to go within the 12 nautical miles surrounding the two features that appear at low tide and claimed that it was in international waters.  The “international waters” argument is misleading but the area does lies in relatively less sensitive waters.  However, since China has not defined the baselines for the Nansha Islands, we cannot determine that the U.S. Navy entered Chinese territorial waters.   Next, the U.S. may decide to pass within the 12 nautical mile waters around the four coral islands.  That would be more sensitive but would still fall under innocent passage and in essence no different from the passage of the Chinese Navy through the Tanaga Strait within the territorial waters of the U.S.

Another kind of action would really back China into a corner.  This would be if, even though China has cut back on the expansion of the islands and reefs due to land fill, US naval vessels were still determined to come within 12 nautical miles of Huayang reef, Johnson South Reef, Hughes Reef, and the reef surrounding Yongshu and then stopped or dropped anchored.  Or alternatively, came within 500 meters of Mischief Reef, Gaven Reefs, and Subi Reef and stopped or dropped anchor or conducted similar activities (such as fishing, scientific research or data collection). In these situations, China would not be able to continue to make concessions. China would have to respond.  The first response would probably be to monitor and then to send a Chinese naval vessel to anchor in U.S. territorial waters to see what the U.S. response would be.  The next step would be to take various harassment measures. The next step would be to fire a warning shot in order to expel the ship.  The last resort would be to shoot to injure personnel or sink the ship in order to show China’s determination to defend its sovereign territory. If the U.S. were to take the above measures, it would be in effect getting close to declaring war.  As an experienced hegemon, the probability of the U.S. taking these kinds of measures is nearly zero.

Some believe that entering once is fundamentally different from entering multiple times and so should be handled differently.   I don’t agree. The U.S., for the sake of boosting its influence, will be unlikely to enter these areas quietly.  However, if the high profile ways the U.S. choses to enter these waters areas falls under the category of innocent passage, then China may be able to tolerate it.  If the vessel stops, drops anchor or takes similar actions, there is no distinction between doing it once and doing it multiple times.  China would have no alternative but to respond. However, the distinction between once and multiple times would appear in the methods chosen and in the severity of the response.

In conclusion, China’s foreign interests are increasing and China’s naval strength is also developing.  This is normal for a country that is rising.  The U.S. realizes that these changes are reasonable but is also taking measures in response in order to ensure its dominant position and capability of making a response.  When it is compared with the history of other rising states, China’s nearly 40 years of peace is unprecedented.  This helps show that China is truly hoping to find a way to rise peacefully.   Strengthening China’s naval forces and increasing its combat strength can be understood as “ensuring security by avoiding fighting wars”.  This is the same principle as the principle that “power balancing helps preserve peace and stability” in which the Americans so deeply believe.

(Note: Thank you to Christopher Yung, Luo Guoqiang, and Zuo Xiying for their contributions to this article. This article represents only the author’s own views. )

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