Foreign Relations & International Law

Water Wars: The PRC's Double Trouble in the South China Sea

Zack Bluestone
Saturday, October 31, 2015, 6:32 PM

The past few days have witnessed two huge developments in the South China Sea. On Tuesday, the U.S. Navy conducted a long-anticipated freedom of navigation (FON) patrol in the Spratly Islands. Two days later, the Permanent Court of Arbitration (PCA) ruled that it has jurisdiction to hear the Philippines v. PRC maritime case. Given the magnitude of the arbitral decision and U.S. FONOPS, this week’s post will focus exclusively on these two events.

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The past few days have witnessed two huge developments in the South China Sea. On Tuesday, the U.S. Navy conducted a long-anticipated freedom of navigation (FON) patrol in the Spratly Islands. Two days later, the Permanent Court of Arbitration (PCA) ruled that it has jurisdiction to hear the Philippines v. PRC maritime case. Given the magnitude of the arbitral decision and U.S. FONOPS, this week’s post will focus exclusively on these two events. Next Friday, we’ll return to our normal format and circle back to other developments from this past week.

Big Win for the Philippines in PCA’s Jurisdictional Ruling

"Photograph from Jurisdictional Hearing- July 2015- Hearing in Session" (Photo: Permanent Court of Arbitration)

On Thursday, the Permanent Court of Arbitration announced that it had reached “a number of unanimous decisions” with respect to the Philippines’ maritime claims against China. Specifically, the Award held that the case was “properly constituted” under the UN Convention on the Law of the Sea (UNCLOS), that China’s “non-appearance” did not obviate the panel’s jurisdiction, and that the Philippines was within its rights in bringing the case. As a result, the Hague-based tribunal asserted jurisdiction over seven of the PH’s fifteen total claims, and it further reserved the right to consider jurisdiction with respect to seven others “in conjunction with the merits.” The PCA asked the Philippines to “clarify the content and narrow the scope” of the remaining fifteenth claim.

In filing the case back in 2013, Manila sought to harness the rule of law as “an equalizer between a big and a small country.” One of the biggest potential obstacles at the time was China’s claim that the dispute was really about territorial sovereignty and thus was beyond the panel’s jurisdiction under UNCLOS—an argument the Award expressly rejected. Thus, although the panel deferred on the all-important question of jurisdiction with respect to the PRC’s nine-dash claim (PH Submission No. 2), the ruling was a big win for the Philippines.

China was predictably less than enthused with the PCA’s decision. On Friday, PRC Foreign Ministry Spokesman Lu Kang described the Award as “null and void,” declaring that it “has no binding effect” due to China’s “indisputable sovereignty over the South China Sea Islands.” In a separate statement, the Ministry of Foreign Affairs accused the Philippines of “a political provocation under the cloak of law.” The Ministry also pledged that China would not “accept any solution imposed on it or any unilateral resort to a third-party dispute settlement.”

Equally unsurprisingly, the Philippines hailed the decision as a key victory in its ongoing dispute with China. PH Solicitor General Florin Hilbay described the ruling as a “significant step forward in the Philippines’ quest for a peaceful, impartial resolution of the disputes between the parties and the clarification of their rights under UNCLOS.” Antonio Carpio, a maritime law expert and Associate Justice of the Philippine Supreme Court, boldly predicted that, after the PCA’s jurisdictional ruling, “we practically know the tribunal will strike down the nine-dash line.”

For its part, the United States expressed a more restrained sense of optimism, at least officially. State Department Spokesman John Kirby explained that “we don’t take a position on the claims, do take a position on coercion, want all of these disputes to be resolved peacefully, diplomatically, and through international legal mechanisms such as arbitration.” Kirby also reiterated that whatever the outcome, “the decision of the tribunal will be legally binding on both the Philippines and China.” However, speaking off the record, another U.S. official was less reserved: “We of course welcome the decision of the panel.” Likewise, Senator John McCain applauded the tribunal for “upholding international law against China’s . . . questionable claims in the South China Sea.”

For additional analysis, The Diplomat’s Ankit Panda provides a good overview of the broader legal questions involved in the case and how the tribunal might dispense with them. And over at Opinio Juris, Julian Ku offers his initial thoughts on the ruling, including an interesting point about how “China would more clearly be in violation of UNCLOS now than it was before” if it continues to reject the tribunal’s jurisdiction.

U.S. Has Some FON in the Spratlys

The USS Lassen during a port call in Shanghai. Photo: Associated Press

The USS Lassen during a port call in Shanghai (Photo: Associated Press)

Just two days before the PCA’s ruling, the United States conducted widely expected FONOPS in the Spratly Island chain. Early on Tuesday morning, the USS Lassen sailed within twelve nautical miles of Subi Reef—a formerly submerged feature that the PRC has converted into an artificial island. By operating this close to a Chinese-held feature, the American destroyer effectively asserted that it was navigating through international waters, thereby challenging the PRC’s claim to a territorial sea around the artificial island (the operation was NOT a “challenge to Beijing’s territorial claims” to the land feature itself, as some sources have claimed). According to Reuters, the Lassen also transited within the twelve-mile limit of unspecified features claimed by Vietnam and the Philippines. Additionally, the BBC reported that the FON patrol visited Mischief Reef, but as Stars and Stripes explained, it seems the Lassen was, in fact, about forty to fifty miles away from this second artificial island. However, given Beijing and Washington’s shared reluctance to discuss specific details about the U.S. FONOPS, it is impossible to be certain about which features the U.S. contested aside from Subi Reef.

Although this episode marked America’s first FON patrol against a Chinese-held land feature since 2012, the U.S. Navy regularly conducts such operations to challenge “excessive maritime claims by coastal nations in every region of the world.” With respect to this particular operation, Washington sought to underscore its position that geographic alteration cannot change the legal status and resulting rights of land features. Because Subi Reef is a low-tide elevation under UNCLOS Article 13, the United States maintains it cannot generate a maritime zone of its own, even if artificially modified to meet the criteria of other features (e.g., rocks, natural islands). To successfully assert this nuanced legal claim, the United States had to ensure that the Lassen’s voyage was interpreted as a normal military patrol (rather than an innocent-passage transit, which is allowed even within another country’s territorial waters). As Adam Klein and Mira Rapp-Hooper helpfully explained in a post this week, the transit “almost certainly” met this requirement, as the Lassen was accompanied by two surveillance planes, and surveillance within the twelve-mile zone is inconsistent with innocent passage.

China responded to the U.S. FONOPS by sending two PLA Navy warships—a destroyer, the Lanzhou, and a patrol boat, the Taizhou—to warn the Lassen to leave the disputed waters. They then tailed the American vessel for the remained of the 72-mile voyage, albeit at what U.S. officials described as a “safe distance.”

Diplomatic fallout swiftly followed. Hours after the patrol, China’s Vice Foreign Minister, Zhang Yesui summoned Ambassador Max Baucus to explain what he described as “illegal,” “extremely irresponsible,” and “provocative” actions. Later on Tuesday, the PRC Defense Ministry protested the patrol as a “coercive action that seeks to militarize the South China Sea region” and an “abuse” of FON under international law. Likewise, the Chinese MFA declared that “the US naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability.” Although analysts have interpreted the PRC’s reaction as “extraordinarily tempered,” PRC Admiral Wu Shengli told an American counterpart on Thursday that “even a minor incident” could “spark[] war” if the U.S. continues with provocative acts in the South China Sea. These seemingly contradictory reactions can be explained by what the WSJ described as China’s need to strike a balance “between satisfying nationalism at home and projecting firm diplomacy abroad without escalating tensions.”

As for other countries with claims in the South China Sea, the response to U.S. FONOPS was generally positive if somewhat cautious. Although some Asian Pacific countries were initially hesitant to comment, three American allies—Japan, Australia, and the Philippines—quickly backed the patrol. Voicing perhaps the strongest approval, Philippine Assistant Foreign Secretary Charles Jose deemed the FONOPS a necessary check on China’s “illegal, unilateral and expansive” claims in the South China Sea. Other coastal states, like Singapore and Vietnam, expressed general support for FON and overflight rights without expressly criticizing China. Additionally, on the other side of the world, European Union sided with the United States on the patrol, suggesting that the Americans were merely “exercising their freedom of navigation.”

More U.S. FONOPS are expected in the coming weeks. As just one indication, U.S. Secretary of Defense Ash Carton told the Senate Armed Serves Committee on Tuesday that the Navy will continue challenging China’s maritime claims with future patrols around artificial islands. The Straits Times explains repeated operations are necessary to achieve the desired legal effect. Additionally, next week, top Chinese and American military brass will have an opportunity to discuss the patrols face to face, with the Commander of the U.S. Pacific Fleet, Admiral Harry Harris, scheduled to visit China.

There has been more noteworthy analysis of the FON patrol than can fit in one post, but here are a few highlights. Turning first to newspaper coverage, Bloomberg’s Editorial Board describes the U.S. FONOPS as “measured” and calls on China to follow up with a similarly low-key response. NYT justifies the patrol based on Beijing’s attempts “to rewrite the rules by claiming 90 percent of the South China Sea and turning reefs and rocks into more substantial land masses.” And the International Business Times published a great timeline of PRC and U.S. involvement in the South China Sea since 2001.

The think tanks and institutions active in this space have also provided some great content on the FONOPS. CSIS hosted a Q&A about the FON patrol with three maritime law experts, and ChinaFile’s weekly conversation similarly focused on how and why the U.S. is “making waves in the South China Sea.” Over at AMTI, U.S. Commander Jonathan Odom, a Navy JAG Corps officer, offered his thoughts on why the patrols were justified under international law. The Lowry Institute’s Bonnie Glasser similarly defended the naval maneuver but on slightly different grounds.

And several familiar experts published their own analyses of the patrols in recent days. Bill Hayton—a long-time journalist and author of the fantastic book, The South China Seanoted that the U.S. had accomplished a great deal in pushing China to protest against the FON patrol within twelve nautical miles, and not within the broader U-shaped, nine-dash line. Graham Webster examines recent statements from Chinese officials and explains how they reveal “an apparently coordinated effort to maintain strategic ambiguity on key questions about Chinas position” on the FON patrols. And Deniel Flitton criticizes U.S. actions as evidence of a “naked power struggle” that have nothing to do with “legal niceties.”

Water Wars is our weekly roundup of the latest news, analysis, and opinions related to ongoing tensions in the South and East China Seas. Please feel free to email Zack Bluestone with breaking news or relevant documents.

Zack Bluestone is a third-year student at Harvard Law School, where he is Managing Editor of the Harvard Journal of Law & Public Policy and Vice President of the National Security & Law Association. Zack has worked in all three branches of the federal government, including legal internships with the Office of the Chief Prosecutor of Military Commissions at the U.S. Department of Defense, the Office of the President Pro Tempore of the U.S. Senate, and the Administrative Office of the U.S. Federal Courts. Zack graduated summa cum laude from Georgetown University with B.S. in Foreign Service and earned his MBA from the University of Oxford.

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