America is Navigating Freely to Nowhere in the South China Sea

June 2, 2017

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How we judge the success of the U.S. Navy’s freedom of navigation operation (FONOP) near Mischief Reef last week depends on what it was supposed to achieve. Was it intended to address a legal problem or a strategic one?

To be more specific, did it aim to contest China’s claim of a 12-nautical mile territorial sea around a low tide elevation contrary to the generally accepted interpretation of international maritime law? Or did it aim to contest China’s challenge to U.S. strategic leadership in Asia?

If it was the former, then last week’s FONOP was probably a success. China will, of course ignore it, but in the arcane world of international law, the USS Dewey’s transit within 12 nautical miles of Mischief Reef in “normal mode,” symbolized by the conduct of a man overboard exercise during the transit, plainly signalled America’s rejection of China’s claim to those waters as territorial sea, and thus prevented that claim becoming gradually established by default.

On the other hand, if the aim was to counter China’s challenge to U.S. strategic primacy, then it was surely a failure. To see why, we need to understand what’s really happening in the South China Sea. What we see there is a stark display of power politics. The ostensible legal issues simply provide the setting for a contest of demonstrated resolve. Beijing is trying to defy Washington’s traditional regional maritime supremacy and undermine American leadership, by showing that the United States is not willing to risk a military confrontation with China on behalf of its friends and allies and in defence of the U.S.-led order.

Last week’s FONOP, like previous operations last year, did nothing to respond to this strategic challenge, because it did nothing to demonstrate U.S. strategic resolve. On the contrary, everything about the way the operation was conducted and announced was designed to present it as a purely legal gesture, thereby minimizing any risk of confrontation.

To succeed at all in contesting China’s 12 nautical mile claim around Mischief Reef, the Dewey had to conduct some kind of operation or activity. That’s because maritime law allows warships to transit another country’s territorial seas without prior permission if the passage is “innocent,” which means they do not undertake any kind of exercises or operations as they go.

Making an innocent passage would be consistent with American acceptance of China’s claim. Conducting the “man overboard” drill was the most modest, least assertive possible way to make the essential legal point by establishing that the Dewey passage was in “normal” rather than “innocent” mode, and thus was inconsistent with, and challenged, China’s territorial sea claim.

Likewise, news of the operation was handled in a very low-key way. It was not officially announced, and in response to unofficial (though clearly authoritative) reports, U.S. officials said simply that the operation would be formally notified, along with other FONOPs around the world, in the Navy’s annual report. Officials also went out of their way to downplay the idea that the operation had anything to do with China, saying that that FONOPs are not directed at any one country but are aimed at upholding principles of maritime law.

It therefore did nothing at all to show America’s resolve to do whatever it takes, including confronting China militarily, to defend its position in Asia. In fact, by taking such pains to avoid any risk of confrontation, it sent a plain a message of weakness and timidity, not of strength and resolve. So it was not just ineffective in responding to China’s strategic challenge, but counterproductive.

Of course, one can argue that we should stand up for principles of international law even if we are ignored. Better to do that, the argument goes, than to stand mutely by while they are trampled, and such operations accomplish that. But we wouldn’t want to mistake that kind of gesture for an effective defense of the U.S.-led regional order.

To respond effectively, Washington would have to show plainly that it was willing to risk a military confrontation to reassert its leadership and restore its credibility in Asia. That would mean doing something like militarily blocking Chinese access to its South China Sea bases, as Secretary of State Rex Tillerson rashly threatened to do in his confirmation hearing back in January. That would send a clear message of strength and resolve.

But it would also pose a very grave risk, because of course a military confrontation with China could quickly escalate into a conflict, and few people in Washington are willing to accept that risk. That is entirely understandable — but it plainly shows the depth of Washington’s policy dilemma. It wants to preserve the U.S.-led order in Asia, but it has no stomach for the massive risks that would be entailed in any effective response to China’s challenge.

It is perhaps not surprising that American policymakers try to escape this dilemma by redefining the problem in legal rather than strategic terms, and to deal with it by legal rather than strategic measures. But that just doesn’t fit the harsh reality of power politics in Asia today. Focusing on the maritime legal aspects of China’s actions in the South China Sea is just a way to avoid admitting the true magnitude of its strategic problem in Asia.

The reality is that America will not find an effective response to China’s push to replace it as the leading power in Asia unless and until it recognizes that this will entail very large costs and risks, and decides to accept them. And that will only happen if and when Americans decide that remaining the primary power in Asia over the next few decades really matters to them. And it is far from clear that they will decide that.

 

Hugh White is Professor of Strategic Studies at the Australian National University in Canberra, and the author of The China Choice: Why We Should Share Power. He served for many years as a senior Australian defense official.    

Image: U.S. Navy photo by Mass Communication Specialist 2nd Class Declan Barnes

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