John McCain

SINGAPORE: In a clear message to the Obama Administration, our Pacific partners and to China, Sen. John McCain says the US military is not doing enough to challenge Chinese claims in the strategic South China Sea. Nor is the US doing enough to ratify the Trans-Pacific Partnership (TPP) trade pact, a vital economic objective in the region, the senator said on the eve of the Shangri-La conference here.

“We have not,” McCain said bluntly when I asked him after his speech here whether the US had done enough Freedom Of Navigation Operations (FONOP) to challenge China’s claims. “We have sort of made it a signal event when we sailed a destroyer within the 12-mile limit” — the “territorial sea” claimed by China around its islets — “and at one point the Department of Defense wouldn’t even acknowledge we had done that.

“We should make it clear that these are international waters and filling in islands is in violation of international law,” McCain said. “I would like to see both air and ship transiting the areas around these islands as just a normal routine.”

The USS Lassen, which sailed through Chinese-claimed waters in October 2015

Much Talk, Little Action

Instead, the US stopped sailing within 12 nautical miles of Chinese-claimed land masses for three years, 2012-2015. “The Chinese got away with a hell of a lot during that period,” said Bonnie Glaser, head of the China Power Project at the centrist Center for Strategic & International Studies, in an interview here after McCain’s speech.

That the US has resumed sail-bys constitutes major strategic progress, Glaser said, but there has been too high a ratio of talk to action. “There’s been too much public messaging about the FONOPS, in part because we want to reassure the anxious countries in the region that we are in fact standing up for peace and stability,” she told me. “But I think we’ve done that and now we need to stop talking publicly about FONOPS. We need to do them. We need to do them regularly.”

Since last fall, US warships have sailed three times within 12 nautical miles of Chinese-claimed “high-tide elevations,” namely rocks or other natural features that remain above water at high tide. None of those FONOPS has passed within 12 miles of Chinese artificial islands built atop “low-tide elevations” such as coral reefs which are above water only at low tide. According to international law, creating a manmade land mass atop a low-tide elevation conveys no rights to the surrounding sea or to the “land” itself.

“We simply sent the message to the Chinese we were trying to be very, very cautious,” said Glaser. “Every one of these has been lawyered to death by the State Department and the Navy.” (Some close observers also cite the National Security Council.)

“For a country that keeps saying we will sail where we want, when we want, we apparently never find the time to sail near an artificial Chinese island,” said Dean Cheng, China expert at the conservative Heritage Foundation, in an email. “When will we do an actual FONOP (not innocent passage) around an artificial island?”

Cheng is referring to the fact that the US has so far confined its sail-bys to so-called “innocent passage,” in which a warship sails directly across the waters in question without scouting around or conducting military operations. That’s because the naturally-formed islands the FONOPS have sailed past all belong to somebody, even if China and its neighbors dispute who that is, and they therefore have a territorial sea the US feels bound to respect.

What the US has not respected is restrictions it sees as contrary to the principle of innocent passage. China demands any foreign warship ask permission before traversing its territorial seas, and other regional powers require advance notice, but the US complies with neither. The US has challenged what it considers excessive requirements to enter territorial waters, not the fact that these stretches of sea are someone’s territorial waters.

Artificial islands built where there was no land previously in evidence at high tide, by contrast, have no territorial waters to challenge, at least according to American lawyers. A meaningful Freedom Of Navigation Operation near such a manmade landmass would have to include the military operations only permitted in international waters. This doesn’t have to be dramatic, Glaser said. It could be as simple as launching a helicopter, turning on a targeting radar, or even loitering a bit rather than taking the straightest path across.

A Chinese Navy J-11 fighter buzzes a US P-8 Poseidon surveillance plane off Hainan Island in August 2014.

An Indirect Approach?

To date, however, the US has avoided such direct challenges. Indeed, argued Bryan Clark of the Center for Strategic & Budgetary Assessments, the American approach has been remarkably indirect.

“The US can be seen as playing a ‘long game’ in which it improves relations with and its military posture in countries on China’s Southeast Asian periphery and to reduce China’s influence, while in the near term giving in on China’s efforts in the South China Sea proper,” Clark said in an email (emphasis added).

What has this tack achieved since the last Shangri-La? The Philippines has hosted Air Force A-10 attack planes. Singapore is hosting Navy P-8 patrol aircraft. Vietnam agreed to host a US Army stockpile of humanitarian supplies, and the US lifted restrictions on arms sales to Hanoi. All this “goes along with this idea of not contesting the South China Sea islands directly, but instead building more lasting relations and military posture along the periphery,” Clark said. “If properly equipped, forces in Vietnam and the Philippines could hold China’s island facilities at risk and negate some of the advantage they provide China.”

“That may work,” Clark continued, “but only if the increasing Chinese militarization of the South China Sea does not in the end convince its neighbors that the US will not be able to support them militarily….. Eventually, the U.S. will have to contest China’s effort to make the South China Sea a ‘Chinese lake.'”

The best place to start, said Glaser, is Mischief Reef, where China has built an artificial island complete with a military airstrip. She’s urged the administration to do this operation for some time but suspects the US has delayed pending a decision by the UN tribunal ruling on Sino-Philippine territorial disputes.

“I think that the United States is waiting for the tribunal ruling,” Glaser said. “Once the tribunal says that Mischief Reef is a low-tide elevation, then I think the US will be certain it has law on its side, and then it will conduct that FONOP.”

Mischief Reef

Tribunals & Treaties

The tribunal ruling is expected no later than July, and Sen. McCain himself called it “a test for China” in his speech here. “This decision should not be viewed by China as a suggestion,” he said, “but as a law that China must acknowledge, abide by, and uphold.”

But even in the best case, China is more likely to “abide by” the ruling tacitly than to “acknowledge” it openly, Glaser said. The tribunal is ruling on at least seven separate questions, possibly as many as 15, she explained, and “on some of those issues China could rhetorically reject it, but come into compliance.”

For example, China could cease harassment of Filipino fishing vessels in international waters beyond the 12-mile claims, without publicly saying it was doing so and without accepting tribunal rulings on other subjects. China could also quietly refrain from further territorial claims or island building in the Spratly Islands and forego declaring an Air Defense Identification Zone over the region, she said, both of which would be dangerously destabilizing. Yes, it would be ideal for China to officially submit to the tribunal ruling, but complying in practice without admitting it is still far superior to outright disregard.

For the Chinese to run roughshod over the tribunal ruling “would harm what they care about, and that is their image as a nation that is a peaceful and contributing member of the community of nations,” McCain said. If China does violate the ruling, he said, the US should respond with more Freedom Of Navigation Operations, closer military cooperation with China’s neighbors, and closer economic cooperation with the region as well.

“One of the greatest and more important things we could do is accelerate the ratification of the TPP,” McCain said. But, asked one reporter, what are the prospects for ratification when all three leading presidential candidates oppose it?

“I have to give you the honest answer, things are not good right now,” McCain said, understatedly, to laughter. “What I do believe is that there is every possibility after this election that we could have a lame duck session of Congress (pass TPP) or with the proper leadership of the next president of the United States… that we could marshal sufficient support.”

If TPP dies, “I have talked to many leaders in the region who have said unequivocally that this could be a devastating blow to the United States’ economic and other interests,” McCain said. “That warning has to be made clear to members of Congress.”