Dear World Media: The U.S. is NOT Challenging China’s Territorial Claims in the South China Sea (Yet)

I have been following closely the U.S. Navy’s plans to use military ships and aircraft to challenge China’s aggressive land reclamation activities in the South China Sea, and China’s not very positive reaction to these plans.  But although there is a real dispute brewing here that could escalate into a sovereignty fight, I think media reports are making this dispute more serious than it actually is.

Contrary to some media reports, the U.S. Navy plans do NOT intend to challenge China’s “sovereignty” claims in the South China Sea. Instead, the U.S. Navy is asserting its rights to freedom of navigation under international law. If we understand the U.S. Navy plans in this context, it may help us defuse (at least somewhat) the growing tensions between the U.S. and China in this region, if only the media would help us out with better reporting.

From CNN, here is an example of how media reporting is making this dispute seem worse than it is.

(Emphasis added). This report feeds into the (accurate) narrative about growing tensions between the US and Chinese navies.  In this story, the US Navy is flying “over” the Chinese islands in order to challenge or reject China’s territorial claims.  But later in that same report, CNN says that U.S. Navy is considering “flying such surveillance missions even closer over the islands, as well as sailing U.S. warships within miles of them, as part of the new, more robust U.S. military posture in the area.” (emphasis added).

Here’s the problem.  If the U.S. Navy aircraft featured in the CNN video (a military surveillance plane and “sub hunter”) actually flew “over” the Chinese artificial islands, then why would they consider flying even closer “over” the islands and what would be the significance of sending naval ships?

In fact, the US Navy has tried to make it clear to reporters that they are merely conducting freedom of navigation operations and “that U.S. military aircraft do not fly directly over areas claimed by China in the Spratly Islands.” (in the washington post).  It’s my guess that the Navy hasn’t even flown within 12 nautical miles of the artificial islands.

Why? Because as far as I can tell, this is a standard US Navy “freedom of navigation” operation that it uses to assert international law rights of navigation against numerous countries around the world.  It is NOT, as the CNN and other reports suggest, a challenge to China’s territorial claims.

“Freedom of Navigation” operations involve sending US Navy warships into both the 200 nautical mile Exclusive Economic Zone and the 12 nautical mile territorial seas recognized under the UN Convention on the Law of the Sea.  In the view of  the U.S., military warships and aircraft are free to conduct surveillance operations (e.g. spying) in any country’s 200 nm EEZ and surface warships (but not military aircraft or submarines) have the right to “innocent passage” through a country’s 12 nautical mile territorial waters.

The U.S. Navy has been conducting  “freedom of navigation” operations for decades to enforce these views of international law, and it even has a “Freedom of Navigation” website making public where it has been operating. The point of these operations it to publicly challenge a country which is making (in the U.S. view) unjustified legal rights under UNCLOS.  China has a longstanding disagreement with this U.S. interpretation of UNCLOS. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.

But the bottom line: pace CNN, freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.” The US Navy operations assume that the other nation has “sovereignty” over the relevant coastline or island.  So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand China allow US military aircraft and ships  transit rights etc. under UNCLOS.

It is worth noting that the U.S. could escalate the dispute with China.  The U.S. might take the view that China is building artificial islands on top  of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”).  If so, then the US would fly within 12 nm miles or even directly “over” the artificial islands. Such operations would effectively be a direct challenge  to a China’s territorial claims, because the U.S. would be taking the view that China has no territorial basis at all for claims in the South China Sea.

“Challenging legal rights under UNCLOS” doesn’t make for very sexy headlines or get many clicks as compared to “challenging China’s territorial claims”. But it is worth parsing media reports about US Navy activities in the South China Sea very carefully, and it would be nice of those well-sourced reporters would clarify just how close the US Navy is going to fly/sail to China’s reclaimed islands.

Maybe the U.S. government should directly challenge China’s territorial claims and sovereignty claims.  I am not sure in my own mind whether the U.S. should take that next step.   But for now, the U.S. hasn’t challenged China’s territorial claims yet, and I wish reporters would stop making it seem like it is doing so.