U.S. Ambiguity Strengthens Beijing in the South China Sea
Washington needs to get its priorities straight.
Joseph A. Bosco
February 6, 2016
Are the United States and China collaborating to rewrite the international law of the sea? If so, it would be an odd but potent combination with ominous global implications.
China is a member of the United Nations Law of the Sea Convention, but regularly violates its provisions. The United States has not ratified UNCLOS, but has been its chief enforcer on behalf of freedom of navigation and world commerce. They would seem to be on opposite sides of the international legal regime.
Beijing pushes the envelope almost every day by asserting sovereignty over virtually the entire South China Sea, making unprecedented maritime claims and building and using artificial islands to claim further rights to newly created “territorial seas.”
In the face of Beijing’s constant overreaching, American officials have repeatedly put forth traditional arguments defending freedom of navigation and overflight under UNCLOS and customary international law. But rhetoric aside, for years Washington has been relatively passive as China builds facts on the ground and on the water.
In the face of mounting Congressional and expert pressure, the United States finally began taking steps to assert its navigational and overflight rights. Unfortunately, Washington’s ambiguous, confusing and contradictory response has raised new questions about U.S. seriousness and commitment.
When China unilaterally declared an Air Defense Identification Zone in the East China Sea last year, Washington dispatched two unarmed B-52s to the zone to assert freedom of overflight. But unlike Japan, it also directed U.S. commercial aircraft to comply with China’s notification “requirements.”
Last fall, after months of verbal protestations without action, it finally sent the USS Lassen into the twelve-mile area claimed by China around one of its manmade islands. But U.S. officials then gave a series of conflicting accounts on whether it was a Freedom of Navigation Operation (FONOP) or innocent passage (IP).
The distinction matters because a FONOP is conducted in normal operating mode and concedes nothing on sovereignty to the unlawful claimant. The IP, by contrast, acknowledges that it is passing through the claimant’s territorial waters and does so in a non-challenging posture—e.g., with weapons and radar systems deactivated.
http://nationalinterest.org/feature/us-ambiguity-strengthens-beijing-the-south-china-sea-15131
