On June 18, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel offered a press preview of the U.S.-China Strategic & Economic Dialogue (S&ED) now taking place in Washington, D.C. During the briefing Russel fielded a question about U.S. efforts to reduce tensions with China in the South China Sea. His response was surprising: "As important as [the] South China Sea is ... it's not fundamentally an issue between the U.S. and China."
While Washington has long sought to avoid entanglement in the complex territorial disputes in the South China Sea, it has had plenty of "issues" with Chinese behavior there. Yet such concerns may pale in comparison to growing discord over a new Chinese initiative to build artificial islands in the Spratly archipelago. Although these "land reclamation" projects are now nearing an end, the episode has provoked new U.S. concerns about freedom navigation and risks drawing Washington more firmly into the South China Sea milieu than ever before.
China's land reclamation efforts on eight maritime features in the South China Sea cannot be explained by basic economic motives or the important but declining fishing stocks around the Spratly Islands. While there are not-insignificant reserves of natural resources in the South China Sea, the high cost of deep-water drilling and the abundance of political risk have rendered their extraction unprofitable for the time being. In any event, most of the natural resources lie outside the areas affected by China's artificial island-building.
Instead, China hopes to buttress its claims to disputed waters and features 700 miles from its coast and fortify its military foothold in the South China Sea. It's no coincidence that "satisfying necessary military defense requirements" is always referenced in Beijing's own justification for the projects. China has already built a runway on Fiery Cross Reef and recent satellite footage captured two mobile artillery pieces being placed on an artificial island before being quickly removed or hidden.
Although vulnerable to attack during wartime, these outposts nevertheless can offer China myriad strategic advantages as power projection platforms. Ports and airstrips would extend the range of Chinese planes and ships, while helipads would enhance the potency of China's otherwise modest air-based anti-submarine warfare capabilities. Meanwhile, its vast and active Great White Fleet of maritime law enforcement vessels will enjoy new re-supply hubs. Finally, the outposts give China a foothold atop one of the world's most important Sea Lanes of Communication (SLOC), host to some $5 trillion in seaborne trade annually and the vital lifeline for the economy of China's regional rival, Japan.
Is China's Land Reclamation Legal?
By pumping dredged sand atop underwater and barely-above-water rocks and shoals, over the past year China has created eight new artificial islands in the South China Sea.
The process of land reclamation itself isn't exactly novel. China is not the first country to conduct these operations in the Spratlys. However, other claimants to the Spratly islands halted new island-building projects after November 2002, when China and regional capitals signed a Declaration of Conduct (DoC) committing all parties to "exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability." China's efforts appear to be a violation of that commitment, particularly given their unprecedented scale. Total acres reclaimed jumped from five in January 2014 to 500 in January 2015. By June 2015, China had reclaimed 2,000 acres, more than all the land reclaimed by all other regional countries combined.
To be sure, Vietnam and Taiwan also currently have land reclamation efforts underway, but those are far more modest in scale (60 acres and five acres, respectively). More important, they are designed to fortify or expanding existing islands while China is creating altogether new ones. While this is not prohibited by the UN Convention on the Law of the Sea (UNCLOS), what China is trying to do with the islands is.
The Convention grants specific rights to different maritime features. Full-fledged islands enjoy a 12 nautical mile (nm) territorial sea and 200 nm Exclusive Economic Zone (EEZ). Rocks above water at high tide (but unable to sustain life or economic activity) are granted just a 12 nm territorial sea. Rocks and shoals underwater at high tide are entitled only to a 500 meter "safety zone."
By most estimates four of the eight artificial islands China has created were originally rocks and four were originally underwater features. Yet through land reclamation Beijing appears intent on "upgrading" these features to the status of islands and claiming expanded UNCLOS rights for them.
The Convention is clear that this is not permissible. As Greg Poling notes for the Asia Maritime Transparency Initiative: "What matters is the original status of the feature, not what it is made into." Rocks and islands must be "naturally formed" and an underwater feature cannot be made into a rock or island. Moreover, UNCLOS Article 60 explicitly states: "Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own."
Drawing America Into the South China Sea
China's new strategy has a direct bearing on U.S. national security interests. That's because it is aggravating a separate-but-now-related dispute with China over freedom of navigation for U.S. surveillance. The consequences of expanding and migrating that dispute to the South China Sea will outlive any tumult over land reclamation projects themselves.
China and a minority of two dozen countries (out of a total of nearly 200) argue that UNCLOS grants states the right to regulate the activity of foreign surveillance ships in their 200 nm EEZ. The U.S. and a vast majority of the world's nations disagree, insisting that such activities do not require "coastal-state consent" under UNCLOS. As Raul Pedrozo notes in the Chinese Journal of International Law, a state's right to limit intelligence collection activities is only addressed in Article 19 dealing with a country's territorial sea. "A similar restriction does not appear in Part V of the Convention regarding the EEZ. Under generally accepted principles of international law, any act that is not specifically prohibited in a treaty is permitted."
This is no mere legal dispute, however: since 2001 Chinese forces have confronted U.S. surveillance vessels in China's EEZ in roughly one dozen reckless confrontations, using bully tactics to intimidate the unarmed ships that include snagging one vessel's sonar array with a grappling hook. While the maritime encounters have thus far been managed peacefully, they nevertheless carry escalation risks. It's not hard to imagine how new (and unlawful) Chinese EEZs littered across the South China Sea could further inflame bilateral tensions and increase the likelihood of miscalculation or conflict.
It is therefore incumbent on the Obama administration to expeditiously and directly challenge any claim of expanded rights for the artificial islands by ordering the U.S. military to fly and sail within the legal limits accorded by UNCLOS. (Since 1979 the U.S. has been conducting annual "Freedom of Navigation Operations" to challenge what it sees as excessive or unlawful territorial claims). Though unrelated, a sound precedent was set by America's swift but discreet challenge to China's unilateral declaration of an Air Defense Identification Zone (ADIZ) in the East China Sea in 2013.
This state of affairs has primed the South China Sea for a new cat-and-mouse-game between Washington and Beijing, the opening salvo of which was fired in May when the U.S. very publicly dispatched a P-8 Poseidon maritime patrol aircraft near (but not within 12 nm of) one of the artificial islands. A CNN film crew aboard the plane recorded a Chinese operator identifying himself as "the Chinese Navy" and demanding the P-8 — which he said was entering a Chinese "military alert zone" — "leave immediately." While Beijing has yet to disclose what classification it considers the artificial islands, the episode served as evidence that it intends to claim "upgraded" rights for them not entitled under UNCLOS.
The real test will come when U.S. forces sail and fly within 12 nm of the previously-underwater features. Administration officials have anonymously suggested this is the "logical next step" and in recent months U.S. Defense Secretary Ashton Carter has repeatedlyasserted that the U.S. military "will fly, sail, and operate wherever international law allows, as U.S. forces do all over the world." Yet to date no order has been issued.
This is a strategic miscalculation. The administration was undoubtedly hoping to keep the waters calm for this week's S&ED but it is likely to be disappointed if it's expecting a fundamental change in China's maritime strategy. Meanwhile, the longer America waits to challenge any new precedent, the more firmly it becomes precedent. Further delay could actually raise the prospect for conflict and offer China an opportunity to blame Washington for any future confrontation by disrupting what had emerged as a peaceful status quo. What's more, the delay contributes to the growing (and mostly unfair) perception that America's "pivot" to Asia is a toothless initiative stronger on symbolism than substance.
American inaction is already causing anxiety among regional partners who see Obama as a weak president devoid of resolve in the twilight of his career. Numerous analysts in Japan, India, and ASEAN countries have speculated that the next 18 months will witness even more aggressive boundary-testing from Beijing, which fears a tougher posture from whoever succeeds President Obama in the White House. It's these same partners who no doubt cringed at Russel's suggestion the U.S. has "no issues" with China in the South China Sea.
Beijing certainly thinks we do. China's Ministry of Foreign Affairs has warned that American reconnaissance operations around China's "islands and reefs" is "highly likely to cause miscalculation and untoward incidents in the waters and airspace, and is utterly dangerous and irresponsible." Elsewhere, the nationalist Global Times has barked: "If the United States' bottom line is that China has to halt its [land reclamation] activities, then a U.S.-China war is inevitable."
It's painfully obvious that if the U.S. did not have an "issue" with China in the South China Sea before, it most certainly does now.
Jeff M. Smith is the Director of Asian Security Programs and Kraemer Strategy Fellow at the American Foreign Policy Council in Washington, D.C. He is author of Cold Peace: China-India Rivalry in the 21st Century (2014) and can be found on Twitter at @Cold_Peace_.