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Is a US-China Showdown in South China Sea Imminent?

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight,” said Chinese Foreign Ministry spokeswoman Hua Chunying at Friday’s regular news briefing. “We urge the related parties not to take any provocative actions, and genuinely take a responsible stance on regional peace and stability.”

Hua was evidently reacting to a Navy Times report that the US Navy was planning to send a surface combatant within 12 nautical miles of a Chinese island in the South China Sea in a bid to preserve freedom of navigation for itself and others.

In the Spratly chain, China has been dredging sand to transform shoals and reefs—some of them submerged—into artificial islands, now known as the “Great Wall of Sand.” Beijing claims those new islands are entitled to a 12-nautical-mile band of territorial water. The UN Convention on the Law of the Sea, which China has ratified, and customary international law permit a state to claim such a band only with respect to features that were visible above water at high tide before reclamation. 

The US, which has not ratified UNCLOS, takes the position that it has the right to sail near or fly over the reclamations of once-submerged features under customary law.

American admirals, the Navy Times reported Thursday, are now hopeful about obtaining permission from the Obama administration for the Fonops, a freedom of navigation exercise or operation. As the paper stated, “Navy officials believe approval of the mission is imminent.”

Approval was not imminent in late July when Politico reported that the administration was not granting approval. Then, it appeared White House officials wanted to wait until President Obama had an opportunity to talk about China’s island building with his Chinese counterpart, Xi Jinping, during the state visit last month.

It’s not clear how those discussions went, but on Tuesday both the New York Times and Wall Street Journal reported that a Fonop will occur soon. The Times stated that US officials had briefed countries in the region of the plan to conduct such a patrol. “It’s just a matter of time when it happens,” a “US official” told the Journal.

Beijing, for its part, has been working overtime to prevent what it considers to be an incursion by the US Navy. In addition to Hua’s warning, the People’s Liberation Army has been adding its voice. Hong Kong’s South China Morning Post reported on Thursday that a “source close to the PLA” said that the Second Artillery, which is responsible for the country’s nuclear forces, could fire on an American ship should it conduct a freedom of navigation exercise.

Chinese hypocrisy—and arrogance—is breathtaking. Early September, five Chinese warships sailed within 12 nautical miles of one of the Aleutians without seeking permission to do so, apparently taking the position that their transit constituted “innocent passage.” So Beijing believes it has the right to intrude into American territorial waters and the US does not have the right to sail international waters close to China’s reclaimed features.

There are lessons for American policymakers here. The US has historically promoted a broad view of innocent passage as a means of defending freedom of navigation. Washington hoped that China would follow its example and similarly adopt an expansive view. That hope, by now, has been dashed.

Yet this is not just an issue of China disappointing America on rights to the high seas. Beijing’s blatant disregard of rules in this instance should prompt the rethinking of Washington’s long-term goal of trying to “enmesh” China into the international system by getting it to sign agreements. If Beijing does not think it is bound by obligations it has undertaken, then what is the point? 

Yes, the US needs to sail close to China’s features in the Spratlys, even if Beijing gets upset, because Washington has to protect the global commons. More important, however, American policymakers should abandon the hope that aggressors will be tamed by rules, just because Americans think that would be nice.

Beijing just threw down a challenge to the rules-based international system. Washington needs to understand the implications.

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