In South China Sea Dispute, Did America Blink First?

In a rare exercise of foreign policy backbone, President Obama exhibited Reaganesque-like leadership against China last month—or did he?

China has been building bases upon its manmade islands in the South China Sea—making a 12-mile radius territorial water claim. To protest this, President Obama dispatched a Navy warship to navigate through China’s declared territorial waters, performing the internationally recognized right of “innocent passage.”

However, it now appears the action may well have been a toothless PR stunt, leaving a spineless President Obama once again endangering U.S. national security and a future president to deal with its consequences.

On October 27^th, following months of White House handwringing over how best to respond to China’s island territorial expansion program, the order was given to dispatch the destroyer USS Lassen (DDG-82) to the South China Sea. While U.S. Navy ships routinely operate there, Lassen’s mission was purposefully to navigate within 12-miles of Subi Reef—an artificial island near the Philippines—where China has built a weather station. Announced ahead of time, the transit supposedly was to be an official act to challenge Beijing’s territorial claims.

The Chinese Foreign Ministry immediately protested the USS Lassen’s mission as a deliberate U.S. provocation.

How then were we the first to blink after having sent Lassen on an innocent passage mission to challenge China’s sovereignty?

By insisting all nations honor China’s territorial water right claims over Subi and other artificial islands it has built, Beijing effectively does so as a “squatter.” In American law, the term for a squatter acquiring property by occupying real estate they do not own is “adverse possession.”

Adverse possession succeeds only if an owner does not act in a timely manner to either remove the squatter or, at least, challenge his presence. Failing to do so after a certain period of time confers the squatter rights over that property when certain conditions are met. Once those attach, it is difficult for those who possessed the right to challenge a squatter to do so.

International law works slightly differently. Under early international case law, only discovered lands qualified as terra nullius—territories not belonging to a particular country. Today, however, it refers to land over which no state exercises sovereign control. Thus, the following legal argument can be proffered: any state exercising unchallenged control over such land claims it to the exclusion of all other states based on the latters’ “abandonment” of their rights of challenge.

The question arises, therefore: what actions under international law should be undertaken by those nations challenging another’s adverse possession of shared territory? The answer requires they conduct a “prohibited” activity within the territorial waters being claimed by the adverse possessor.

We need to understand some basic requirements of the United Nations Convention on the Law of the Sea (UNCLOS). While the U.S. is not a signatory, China is.

Article 3 of UNCLOS clearly states: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”

Recognizing the need to limit territorial sea claims, Article 11 mandates “the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbour works.”

Accordingly, artificial islands do not give rise to territorial water right claims. But there is a legal basis for China’s territorial claim to attach if enough time passes without a qualifying challenge to it being mounted. The passage of time without such a challenge suggests other nations have abandoned their right to do so, thus vesting China with its claimed territorial rights.

In issuing a statement about the Lassen having navigated inside of the 12-mile limit claimed by the Chinese, the U.S. categorized the act as one of innocent passage. However, that alone under UNCLOS does not qualify as a prohibited activity sufficient to officially disrupt China’s claim.

The right of “innocent passage” under Article 17 is given to all ships, enabling them to transit another state’s territorial waters without permission. But Article 18 requires that transit be “continuous and expeditious.”

But any challenge to another state’s territorial claim has to involve, pursuant to Article 19, the undertaking of activities during such transit “not having a direct bearing on passage.” This means not passing through continuously and expeditiously but loitering in those waters to conduct activities “prejudicial to the peace, good order or security of the coastal State.”

Thus, a specifically prohibited activity under Article 19 need be undertaken by a vessel. As the U.S. has described Lassen’s transit as a relatively short one showing the flag, it is unclear the vessel undertook any of the necessary prohibited activities in those waters to qualify as an official challenge under Article 19 to China’s claims.

Article 19 does not require the prohibitive act being threatening — it only need be an activity demonstrating a ship clearly is not simply passing through quickly. Thus, even a simple training exercise undertaken by Lassen such as launching and recovering boats would have qualified as an UNCLOS-recognized challenge.

The Chinese fully understand the innocent passage concept. They exercised it just last September when their ships entered into U.S. territorial waters off Alaska.

They also recognize an official challenge is only made by undertaking a proscribed Article 19 activity. By their recent penetration of U.S. territorial waters, they clearly demonstrated innocent passage alone does not a territorial challenge make.

Based on press releases from both the Chinese and U.S. governments to date, there is no indication Lassen conducted anything other than an innocent passage. If U.S. ships continue to make similar transits rather than lingering to conduct a prohibited Article 19 activity, it will only serve to preserve a later right of claim by China other nations have abandoned their right of challenge.

As an article written by a very astute PhD student of maritime security at the University of Calgary, Timothy Choi, points out, while “the eagerly-anticipated Freedom of Navigation Operation (FONOP) by the United States Navy (USN) in the South China Sea was initially viewed as a strong demonstration of the United States’ resolve that the waters surrounding China’s artificial islands and claimed reefs are high seas,” the Lassen may well have failed to achieve its mission in blocking “China’s attempt to establish a de facto 12 nautical mile territorial sea” around Subi.

If the USS Lassen did undertake activities to mount a sufficient challenge barring a squatter’s rights claim by China, a modified U.S. statement to that effect should be issued.

If Lassen failed to do so, President Obama — in an exercise of Reaganesque leadership — should order the ship back to undertake such an activity.

But if this was just a PR move in typical Obama fashion to avoid upsetting the Chinese, the order undoubtedly will have to await the election of a new president.

Lt. Colonel James G. Zumwalt, USMC (Ret.), is a retired Marine infantry officer who served in the Vietnam war, the U.S. invasion of Panama and the first Gulf war. He is the author of “Bare Feet, Iron Will–Stories from the Other Side of Vietnam’s Battlefields,” “Living the Juche Lie: North Korea’s Kim Dynasty” and “Doomsday: Iran–The Clock is Ticking.” He frequently writes on foreign policy and defense issues.