Most international experts and scholars reached by Tuoi Tre News have voiced their support for the US role in exercising freedom of navigation in the East Vietnam Sea over recent tensions related to artificial islands illegally built by China there.
As reported by the Wall Street Journal on May 12, the U.S. military is considering using aircraft and naval ships to directly contest Chinese territorial claims to a chain of rapidly expanding artificial islands.
According to the report, Defense Secretary Ash Carter has asked his staff to look at options that include flying Navy surveillance aircraft over the islands and sending U.S. naval ships to within 12 nautical miles of reefs that have been illicitly built up and claimed by the Chinese in Vietnam’s Truong Sa (Spratly) archipelago.
Below are opinions expressed by several international experts and scholars who study East Vietnam Sea disputes.
Regional states harassed by China will welcome this decision if approved
The Obama Administration has not yet approved officially this recommendation. At a minimum U.S. Navy patrols will keep China from asserting de facto control over a maritime area larger than the 12 nm around each of its features. It is a serious effort to confront China with the fact that if it persists the U.S. will only stay engaged. Regional states that are harassed by China will welcome this decision if approved.
I agree with this action and made a recommendation to this effect in my recent paper published by the U.S. Center for New American Policy in Washington.
China and the U.S. are working for the September summit between Xi Jinping and Barack Obama. China will want to test the U.S. but not too far to spoil the summit. China has already completed land reclamation on four or seven features and is now moving to consolidate its presence by building infrastructure. China will not directly confront the U.S. because it is risk adverse and does not want to escalate the situation.
China is adept at moderating its behavior to suit circumstances. China will complete construction of its infrastructure and only deploy civilian assets with an emphasis on public goods – weather data, search and rescue. China will try to draw in individual ASEAN countries in some sort of symbolic activities designed to undermine the U.S. position. The true test will come at the next meeting of the ASEAN-China Joint Working Group to Implement the Guidelines of the Declaration on the Conduct of Parties in the East Vietnam Sea later this month. U.S. pressure might make China adopt a slightly more cooperative posture, after all China does not want U.S. involvement in the East Vietnam Sea issues.
It is for the right reason
The U.S. needs to reassure these parties and other countries that need transit through the East Vietnam Sea that it is a credible force for stability. In addition, the U.S. might be concerned that if China manages to seize control of the East Vietnam Sea then it will have a potential stranglehold on one of the most important maritime arteries in the world.
It is important to note that the U.S. has no intention to seize territory or maritime space in the East Vietnam Sea from any country.
Of the reefs on which China is building islands, Mischief (đá Vành Khăn), Subi (đá Xu Bi) and Gaven (đá Gaven) are reportedly naturally below high tide. According to international law, no country can claim sovereignty over them. Furthermore they are not entitled to a territorial sea or exclusive economic zone. Artificial islands built on Mischief and Subi are only entitled to a 500-meter safety zone, outside of which any country has the freedom of navigation. If China tries to claim a 12-nautical-mile territorial sea for Mischief and Subi, that will violate UNCLOS [United Nations Convention on the Law of the Sea]. Gaven is slightly different in that it lies within 12 nautical miles of Namyit Island (đảo Nam Yết), which means if lighthouses or similar installations which are permanently above sea level have been built on it, it could be used as a base point for drawing straight baselines and claiming territorial sea.
The U.S. has a long-standing policy of deliberately disregarding maritime claims that violate international law. In the past it disregarded China’s view on the freedom of navigation in the EEZ [exclusive economic zone]. It is possible that it will also disregard China’s unlawful claims of territorial sea by exercising its right to the freedom of navigation. If this happens, it is most likely that China will respond with actions that will lead to confrontations such as the Impeccable incident in 2009. Unfortunately the U.S. is not an UNCLOS signatory, so it cannot unilaterally take China to court. This brings us to an important point: if China tries to claim a 12-nautical-mile territorial sea for Mischief and Subi, other UNCLOS signatories should take it to court. Among other things, that would help to prevent incidents between China and the U.S.
The other reefs that China is building islands on, namely Fiery Cross (đá Chữ Thập), Cuarteron (đá Châu Viên), Hughes (đá Tư Nghĩa), Johnson South (đá Gạc Ma), and possibly Eldad (đá Én Đất) (there is conflicting information regarding Eldad), all have rocks above high tide, which means they are entitled to a 12-nautical-mile territorial sea. Within the territorial sea there is no freedom of navigation. Instead, there is the right of innocent passage, which is a more limited right. This right applies even to military ships and aircraft. No country has the right to prevent the U.S. from exercising this right in a way that conforms to UNCLOS within 12 nautical miles of these reefs. Again, if the U.S. chooses to do so, China is likely to respond with actions that will lead to confrontations such as the Impeccable incident.
However, these hypothetical confrontations might escalate because the Spratlys area is extremely sensitive and because any confrontations will be in close proximity to Chinese air or naval bases.
From the legal point of view, it is totally justifiable to exercise the freedom of navigation within 12 miles of Mischief and Subi, and the right of innocent passage within 12 miles of the other reefs.
If China can also use threats and coercion to prevent other countries, including the U.S., from exercising the freedom of navigation and the right of innocent passage, that would cast a black cloud over the future of the East Vietnam Sea.
I appreciate and back the U.S.’s support for the rule of law in the East Vietnam Sea and its stance against coercion, which I think are fundamentally correct. Certainly the U.S. has no intention to violate Vietnam’s sovereignty or rights. Therefore, if the U.S. chooses to take the actions that the Wall Street Journal has reported, I believe that it is for the right reason.
However, the East Vietnam Sea disputes are long games, therefore the U.S. and other concerned countries need a strategy that can go the distance. If the U.S. and other countries could work in concert, and as part of a long term strategy, to challenge China’s illegal maritime claims in multiple theaters, that might be better than high profile confrontations at sea that cannot be sustained.
A difficult dilemma for the U.S.
China’s reclamation projects have created a difficult dilemma for the United States: in order to maintain credibility among its friends and allies in the region, it will have to make a firm response which underscores that it is ready to defend freedom of navigation in the region; however, regional states do not want America to pursue measures that inflame tensions with China and undermine regional peace and stability. Finding a middle path between inaction and escalation is the problem that American policymakers now face.
China’s reclamation projects affect regional security order
Vietnam, the Philippines, the U.S. and other countries are of the view that Beijing’s efforts to change the status quo through a mixture of coercion, massive reclamation projects, and the construction of military installations violate international norms and adversely affect the development of a stable and just regional security order. In this sense Beijing’s actions are seen as provocative, whereas the activities of the U.S. military will be seen as legitimate and commensurate with the aims of maritime security in the region.