How to Challenge China's New Islands? Carefully

Mischief reef from above.

Photo: STR/AFP/Getty Images

After months of debate and accusations of fecklessness, the U.S. appears ready to challenge China's island-building in the South China Sea. The question is how.

At issue are new islands the Chinese have created by dredging thousands of tons of sand to expand various reefs and rocks in the Spratly archipelago. China claims nearly 80 percent of the South China Sea, based on a "nine-dash line" map that isn't recognized by any other nation. The U.S. takes no position on competing territorial claims, but insists that they be resolved peacefully and in accordance with international law. The fear is that China plans to use its newly created islands as beachheads from which to assert control over a swath of ocean far from its shores.

Territorial Disputes

The voices calling for action want the U.S. Navy to sail warships within 12 nautical miles of the new islands, challenging the notion that China can conjure up sovereign territory out of nothing. It's not a bad idea. A high-profile challenge might pressure the Chinese government to clarify just what it's claiming and under what legal justification.

For the gesture to be effective, however, the U.S. (which hasn't ratified the United Nations' Convention on the Law of the Sea but largely adheres to its principles) must be sure of its legal footing. Reclaiming land isn't in itself illegal; countries such as Vietnam have done their own dredging, although none on the same scale and at the same speed as China. The question is more technical: whether, before reclamation, whatever maritime feature existed was visible at high tide. Submerged bodies aren't entitled to territorial waters.

So U.S. warships should chart their course carefully, targeting only islands such as Mischief Reef, which indisputably used to be underwater. Washington also has to make clear that the ships are conducting so-called freedom of navigation operations -- for instance, by engaging in surveillance during the journey or flying planes into the island's airspace. Otherwise the Chinese could simply claim the operation represented an "innocent passage" past its islands, something that is allowed within territorial waters.

Other publicity, however, should be measured. Inviting along a CNN crew, as the U.S. Navy has in the past, might back the Chinese into responding more forcefully. Thus far Chinese leaders appear to be downplaying the issue in the domestic media, which may indicate they want to keep their options open.

The goal is to reassert the need for all claimants to adhere to internationally accepted rules. To underscore the point, the U.S. could give thought to conducting similar freedom of navigation operations near other once-submerged features, including those claimed by Vietnam, Malaysia and the Philippines. All of those countries welcome the U.S. presence in the Pacific and rely on international law to buttress their claims, so the move would highlight just how out of step China is with its Southeast Asian neighbors.

The White House has a strong hand to play after successfully concluding talks over the Trans-Pacific Partnership trade deal. President Barack Obama should be able to build on that success at next month's APEC summit and lead a renewed push for a code of conduct to guide behavior in the South China Sea. 

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