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The “Kabuki” Performance by the U.S. and China in the South China Sea? The Implications of the USS Lassen’s Innocent Passage

The “Kabuki” Performance by the U.S. and China in the South China Sea?

The Implications of the USS Lassen’s Innocent Passage

 

Eisuke Suzuki*

 

The United States announced that its Navy carried out the Freedom of Navigation Operations (FONOP) within 12 nautical miles of an artificial island built on Subi Reef in the Spratly Islands on October 27, 2015. FONOP was conducted by the USS Lassen, a guided missile destroyer, accompanied by two maritime surveillance aircraft, a P-8A Poseidon and a P-3 Orion. FONOP was to demonstrate that the United States did not recognize China’s unilateral claims of Subi Reef’s territorial sea. The news hit the headlines around the globe. Many people were relieved to know that the Obama administration finally acted on a growing Chinese threat in the South China Sea and supported the United States’ action.

 

The Diplomat remarked with approval on October 28, 2015 that “U.S. allies and partners in the region have now seen evidence that the United States is willing to stand up for the values and principles it has emphasized in diplomatic joint statements for months now. . . . Now that a U.S. grey hull has rejected China’s excessive maritime claims, the security conversations that U.S. diplomats will be having with their counterparts across maritime East Asia will begin on stronger foundations. ” Perhaps, such conclusion was natural at that time.     

 

On October 30, three days after the initial news, however, media, starting with Defense News, carried different stories that what the Lassen conducted was actually “innocent passage” in the territorial sea and not “freedom of navigation” on the high seas. That stark revelation cast the entire the Lassen’s mission into a totally different picture of the control of the South China Sea. According to Defense News,

 

New details about the Lassen’s transit became available Oct. 30 from a US Navy source, who said the warship took steps to indicate it was making a lawful innocent passage with no warlike intent. The ship’s fire control radars were turned off and it flew no helicopters, the source said. Although a US Navy P-8 Poseidon maritime surveillance aircraft was in the area, it did not cross inside the 12 nautical mile limit.  

 

Innocent passage and navigation on the high seas have totally different meanings and carry different consequences. The present law of the sea regime established by customary international law and the UN Convention on the Law of the Sea spells out that “innocent passage” is the right of every state to navigate through the territorial sea of the coastal state so long as a passage satisfies certain conditions such as it being continuous and expeditious, and not prejudicial to the peace, good order or security of the coastal state. Such passage cannot use any weapons, use any aircraft or carry out any survey or undertake any other activity not having a direct bearing on passage.

 

And that right of innocent passage in the territorial sea is precisely what China’s People’s Liberation Army (PLA) Navy fleet exercised in early September this year when it transited U.S. territorial waters in the Bering Sea off the Aleutian Islands. There is one crucial difference in this Bering Sea transit, however. The territorial sea of the Bering Sea is not contested by any state; it is undisputedly the territorial sea of the United States. The sovereignty of the Spratly Islands is disputed by multiple parties of the South China Sea.

 

The choice of Subi Reef for FONOP was deliberately made because the Chinese artificial installation built on a low-tied elevation cannot be subject to territorial sea claims. The purpose of the Lassen’s FONOP was to demonstrate that the rest of the world did not recognize such unilateral declaration of the “territorial sea” of the man-made artificial island on Subi Reef. What the Lassen achieved was the opposite effect. Desirous of avoiding provocation, the Lassen chose not to exercise freedom of navigation on the high seas. The Pentagon denies that the Lassen conducted an innocent passage, and insists that it exercised freedom of navigation. Unfortunately, its argument is circular: (1) a low tide elevation at Subi Reef does not confer any territorial sea rights; (2) innocent passage is only applicable in the territorial sea of the coastal state, but waters of Subi Reef belong to the high seas; and (3) the Lassen’s transit in the waters within 12 nautical miles of Subi Reef, which are part of the high seas, cannot therefore be described as “innocent passage.”

 

The notable recent FONOP was the Gulf of Sidra Incident in 1981 vis-à-vis Libya.

Granted that the Subi Reef situation is somewhat different from Libya’s claims in 1973 that designated the Gulf of Sidra as a closed bay and part of its territorial sea, but with an airport of a 3000-meter runway in near completion on the artificial island on Subi Reef, the situations are more serious than that of the Gulf of Sidra. But President Obama’s response to unlawful claims was a radical departure in form and substance from previous FONOPs. In the Gulf of Sidra, the FONOP sanctioned by then President Ronald Reagan in 1981 had a large naval force led by two aircraft carriers.

 

Dispatching a single destroyer alone must be meant to communicate that the United States did not intend further to heighten growing tensions in the South China Sea. But the paucity of response from the United States, the only sea power capable of dealing with China in the South China Sea, to unlawful activities has allowed China to accomplish what it had intended to do in these reefs of the Spratly Islands. The Lassen’s FONOP took place a little too late, and its operational substance was too modest to demonstrate its professed objective of the action because the Lassen complied with all the conditions attached to the conduct of “innocent passage” in the territorial sea of the coastal state.

 

The fact that the Lassen conducted an “innocent passage” in the end demonstrated by deed its acceptance of China’s claims of the territorial sea of Subi Reef. The Lassen did not fly its helicopters during its transit within 12 nautical miles of Subi Reef installations; nor did the P-8A Poseidon surveillance aircraft that accompanied the Lassen enter the air space above the 12-nautical mile limit. Though they called the Lassen’s mission Freedom of Navigation Operations, it was the name only. Its conduct itself spoke more clearly and loudly. It was an innocent passage within the waters China claims its territorial sea. And China understood it perfectly well. Chinese Foreign Ministry Spokesperson Lu Kang’s statement was rather muted: “Relevant actions by the U.S. naval vessel threatened China’s sovereignty and security interests. . . . The Chinese side hereby expresses strong dissatisfaction and opposition.”

 

If indeed the Lassen exercised freedom of navigation on the high seas, freedom of navigation would have allowed the Lassen to undertake activity that is legitimate on the high seas but not permissible in territorial waters under international law. Freedom of navigation also gives freedom of overflight. The Lassen chose not to “fly, sail, and operate wherever international law allows,” as Secretary of Defense announced. The P-8A Poseidon maritime surveillance aircraft chose to stay out of the air space above the 12 nautical mile of the Subi Reef artificial island. It demonstrated by deed its respect for the territorial boundary of sea and air space of the Subi Reef artificial island.

 

A series of events surrounding the Lassen’s FONOP is noteworthy: (1) pronouncements and leaks made by U.S. officials of the planned “freedom of navigation” operations well in advance; (2) radio communications to the PLA Navy via ----that Lassen’s operations were not harmful nor discriminatory to China; (3) a video conference on October 29 between top U.S. and China naval officers (Chief of Naval Operations, Adm. John Richardson and Commander of the PLA Navy, Adm. Wu Shengli); (4) Commander of the U.S. Pacific Command, Adm. Harry Harris’s visit to Beijing on November 2; and (5) the first U.S.-China joint naval exercise in the Atlantic Ocean on November 7; (6) the USS Stethem’s visit to Shanghai on November 16; and, may I add, (7) the White House’s instructions to Defense officials to be quiet about the Lassen’s FONOP, as reported in The New York Times. They all give the impression that the Lassen’s FONOP was scripted, choreographed and well-staged in the name of “freedom of navigation.” In reality it was the conduct of innocent passage in the territorial sea of the coastal state. Loud verbal exchanges between China and the U.S. asserting their respective rights are just a “Kabuki” performance to maintain the façade of officially pronounced “freedom of navigation” on the high seas. 

 

In the first public speech after the Lassen’s “innocent passage,” President Xi Jinping confidently reiterated in Singapore on November 7 that “islands in the South China Sea have been China’s territory since ancient times, and the Chinese government must take responsibility to safeguard its territorial sovereignty and legitimate interest.” Moreover, on November 22 at the ASEAN Summit in Kuala Lumpur, Mr. Liu Zhernmin, China’s Vice-Minister of the Ministry of Finance, said matter-of-factly, “Building and maintaining necessary military facilities, this is what is required for China’s national defense and for the protection of these islands and reefs.”    

  

Assuming the above analysis is correct, we cannot help concluding that the United States implicitly recognized the territorial sea claims of China in Subi Reef, and we must examine what would be the implications of this “recognition” not only to the security of the South China Sea alone, but also to the East China Sea and beyond.  

  1. The United States expects that China will adjust to “a new normal” just the way Japanese Coast Guard ships have been routinely confronting Chinese Coast Guard vessels’ regular incursions into Japan’s territorial waters of the Senkaku Islands. It is unfortunate that such analogy was drawn between Chinese Coast Guard ships’ violation of the territorial waters of the Senkaku Island and the Lassen’s mission around Subi Reef. The immediate impact will be on the situation of the Senkaku Islands. As already spotted on November 11, China began introducing PLA naval ships, rather than Coast Guard vessels, in the vicinity of the Senkaku Islands. They will be more assertive in their incursions in the territorial waters around the Senkaku Islands.
  2. The Lassen’s innocent passage may adversely affect the future development of the Philippines v. China, an ongoing international arbitration case relating to maritime boundaries in the Spratly Islands before the Permanent Court of Arbitration at The Hague. The Court just issued an award on jurisdiction and admissibility on October 29, 2015 in favor of the Philippines. But victory was only “a go-sign” for the Philippines to enter the ring, where the real fight will take place. The merits phase hearings will start on November 24 at The Hague. As the knowledge of the Lassen’s innocent passage as a tacit U.S. recognition of China’s territorial sea claims is widely shared by many, it may affect the minds of arbitrators on the bench.  
  3. The outcome of the Philippines case against China will most likely determine the fate of China’s grandiose, but grotesque claims of the Nine-dash Line based on      historical grounds in pursuit of “the realization of the Chinese dream of the great national renewal.” Such claims would not only threaten freedom of navigation in the South China Sea, but also potentially jeopardize the use of the most important two straits in the south: the Strait of Malacca between Malay Peninsula and Sumatra, connecting the South China Sea and the Indian Ocean; and the Sunda Straight between Sumatra and Java, connecting the Java Sea and the Indian Ocean. These two straits are strategically the most important controlling points of sea lanes connecting the Indian Ocean and the Pacific Ocean. Also in the north, there are two important straits: the Bashi Channel in the Strait of Luzon between Taiwan and the Philippines; and the Miyako Strait between the Okinawa Island and the Miyako Island. These two straits in the north are for the PLA Navy to access the Pacific Ocean. For the first time in 2010 the PLA Navy transited through the Miyako Strait to the Pacific Ocean. Since then, the passage of the PLA Navy through the Miyako Strait has become an annual event for the Chinese naval exercise in the Pacific Ocean. The Bashi Channel allows the PLA Navy fleet to return to the South China Sea without going back to the Miyako Strait, which is subject to Japanese surveillance. China is now positing itself to deal with the next hurdle, i.e., the Second Island Chain that runs from the Izu Islands through the Bonins Islands, the Marianas Islands, Guam, and the Caroline Islands to Papua New Guinea.

 

With the airport on Subi Reef nearly completed, U.S. policy of being neutral to territorial and maritime disputes has allowed the rule of naked power to prevail. As China increases its A2/AD capabilities, it may not be so far away for the East China Sea and the South China Sea to be effectively controlled by China.

The inability of ASEAN defense ministers meeting to adopt a joint statement on the South China Sea disputes on November 4, 2015 indicates not only the presence of competing and crisscrossing interests among ASEAN member countries, but also a growing Chinese influence. China uses its most preferred mode of “bi-lateral negotiations” between the two parties directly concerned with the issue at stake, rejecting the involvement of any outside parties. China thus deals with one country at a time from the position of strength. Countries want to benefit from China’s riches. China’s Renminbi will soon become an international currency as one of the IMF’s SDR basket currencies. The world should welcome the internationalization of the Renminbi as a source of global liquidity. But China pursues policy of outward expansion with impunity in defiance of international norms and comity.

The more the Renminbi is used as an international settlement currency in terms of frequency and volume, the more it will be considered China’s challenge to the Bretton Woods system. The grandiose vision of “The Silk Road Economic Belt and the 21stCentury Maritime Silk Road” or otherwise known as “the Belt and Road Initiative” was originally announced by President Xi Jinping in pursuit of the “Chinese dream” in the realization of “the great national renewal.” It is designed to create a vast economic zone embracing a new Eurasian economic belt in the north and a new maritime route in the south starting from the eastern seaboard of China through the South China Sea, the Indian Ocean, and Middle Eastern and East African countries to the EU. It is a wing that will sustain the development of “the Renminbi Financial Zone” and the newly established Asian Infrastructure Investment Bank is a vehicle to realize that Chinese dream. What China aims at would be the establishment of China-centric world order with the renewal of its global tributary system.  

It cannot be denied that the funding source of China’s military expansion is the growing supply of the Renminbi. With the internationalization of the Chinese currency together with the opening of the Euro-Renminbi exchange market in the City, London, China’s military power will expands accordingly. And that will eventually tip the balance of power between the United States and China against the former. Before that happens, the United States would make a move to protect its own interest.

We have to be prepared against that eventuality, so that we would not repeat the same fate of being dumbfounded at the United States’ rapprochement with the Communist China in 1971. The so-called Nixon Shock and its resultant humiliation, sorrow, disappointment, and anger at being bypassed by the United States, with which we thought we had a special relationship, taught us a lesson. To maintain the close relationship with the United States cannot be the sole purpose and object of Japan’s foreign policy, but a means to safeguard Japan’s interest. We have to prepare ourselves for the possible U.S. recognition of China’s “major-country relationship with the United States,” which President Xi Jinping has been seeking. It is an open secret that China considers the Pacific Ocean large enough to accommodate the United States and China, the former controlling the eastern half of the Pacific Ocean and the latter controlling the western half of the Ocean.         

Am I the only one who worries that the Lassen’s innocent passage was a prelude to the shaking hands of the United States with China? ###

 

* Eisuke Suzuki is Professor of Law, Ateneo Law School, Ateneo de Manila University, Manila, Philippines. He was Professor of Policy Studies, 2009-13, Kwansei Gakuin University School of Policy Studies, Kobe-Sanda, Japan. Formerly, he was Deputy General Counsel, 1994-2002; Special Adviser to the President, 2003; Director General, Operations Evaluation Department, 2003-04, Asian Development Bank. His latest publication includes “Japan: Farewell to ‘One Country Pacifism’” of August 31, 2015 in The Diplomat; “Non-State Actors in International Law in Policy Perspective” in Math Noortmann et al. (eds.), Non-State Actors in International Law (Oxford, Hart Publishing, 2015) 33-56.