South China Sea: Hanoi and Manila Are Caught Between a Rock and a Hard Place

Despite inconsistent U.S. signaling, the ball is now in the Vietnamese and Filipino court.

While talks of Chinese retaliation in the South China Sea (SCS) may inflame Cold War imaginations, Washington and Beijing are not necessarily the relevant actors in the next phase of Freedom Of Navigation Operations (FONOP) in the region. For clues on the future of FONOPS, look to Hanoi and Manila.

The FONOP conducted by the U.S. Navy in the Spratly islands (around Subi reef in particular) on October 26 substantiated the position asserted by senior U.S. Navy officials and Secretary of Defense Ashton Carter over the past few months. But the apparent election of an “innocent passage” operation by U.S. officials generated confusion as to its legal rationale: Is the objective to assert the right of “innocent passage” for warships without prior authorization? Or is it to contest the recognition of reclaimed features and Low-Tide Elevations (LTE) as islands with a twelve nautical mile territorial sea under customary international law?

While the first question hinges on the interpretation of Article 19 of the United Nation Convention on Law of the Sea (UNCLOS), the second pertains to the legal nature of LTEs and reclaimed islands under Articles 13 and 60. But perhaps the U.S. – China legal quagmire is not the operation’s main take-away. The FONOP allegedly targeted Vietnamese and Filipino occupied islands and features as well. Its impact on these parties is more complex: It manifests U.S. commitment but also exposes these stakeholders’ excessive claims.

In the context of escalating SCS land reclamation efforts, the United States is faced with a series of unappealing options: action or inaction, unilateral or multilateral. Now that the first option was “called”, the next phase will hinge on neighboring countries’ position on FONOPS.

Under U.S. policy, these operations are a means of contesting excessive territorial claims under international law, as reflected in UNCLOS. Ironically, the U.S. is both UNCLOS’ champion and “enfant terrible”: enforcing it on the one hand and refusing to ratify it on the other. While usually conducted by the U.S. Navy alone, the SCS stakes are such that third party participation could become a critical asset.

Phase one: Unilateral operation - U.S. Navy as sole enforcer of the law of the seas

The legal impact of the October 26 operation remains ambiguous. U.S. officials referred to an exercise of the right of “innocent passage”, which would imply the recognition of a territorial sea under UNCLOS Article 19. This is inconsistent with the nature of Subi reef, which qualifies as an LTE under Article 13, and therefore does not enjoy a twelve nautical mile territorial sea. In any case, the issue is moot in that the U.S. does not take any position on the sovereignty of these islands and features.

Despite confusing wording, the end objective is probably to characterize the waters around Subi reef as the high seas, as opposed to a twelve nautical mile territorial sea surrounding islands under UNCLOS Article 121. The aim is to make China’s land reclamation efforts legally void pursuant to Article 13(2): “Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.”

The FONOP’s challenge of Vietnamese and Filipino claims legally operates in a similar manner. Both countries have publicly stated their official support for FON on multiple occasions, stopping short of any material commitment (U.S. - Filipino meeting in August 2015; India - Vietnam joint communiqué in September 2014).

But their official endorsement of FON does not entail the lapse of their claims. If the October 26 FONOP is construed as an “innocent passage” under Article 19, then Subi reef qualifies as an island with a twelve nautical mile territorial sea. Legal clarification and third party participation is therefore instrumental in making the FONOPS effective.

Phase two: Joint operation – Toward an SCS FON “task-force”

Both Japan and Australia are hinted at as potential participants in joint FONOPS with the U.S. Navy, although not specifically within the twelve nautical mile limit of contested features in the SCS. More important is other SCS claimants’ willingness to participate. This would strengthen the following legal principle: China’s behavior does not confer customary international law value to its claims under the nine-dash-line.

From a public relations perspective, the addition of one or several parties would constitute a legitimizing factor to induce China to clarify its claims and accept the jurisdiction of international tribunals. The timely award on jurisdiction and admissibility by the tribunal at the Permanent Court of Arbitration (PCA) provides renewed impetus to confront Chinese territorial claims under international law.