Monday, November 2, 2015

Implicit Recognition

We've noted the Chinese annexation activities in the South and East China Seas and strongly suggested that the US do something about it before it becomes a fait accompli.  Well, of all the possible options, the US opted for arguably the worst one.

As reported by USNI News website, a Navy destroyer made an Innocent Passage near Subi Reef (1).  As a reminder, Innocent Passage is a formal procedure which allows a foreign country to pass through the territorial waters of another country in a prescribed, non-threatening manner.  Thus, the Innocent Passage procedure is, at the very least, implicit, if not explicit, recognition of the other country’s territorial rights and claims.  Therefore, the Navy’s Innocent Passage near Subi Reef was implicit, if not explicit, recognition of China’s ownership and territorial rights to the reef.

Alternatively, the Navy could have done nothing which would have continued the status quo and preserved the US’ position that China does not own the artificial islands. 

Or, the Navy could have conducted a passage that did not conform with the Innocent Passage procedure thereby explicitly denying China’s claims.  This would have required nothing more than operating a radar, pointing a gun, performing some other extremely mildly threatening act, or simply stopping for a period of time.

Not only did we just acknowledge China’s claims thereby cutting the legs out from under our allies who also claim the features, but we set a precedent that China can now use against us in future actions.  In the court of public opinion, how can the US take any aggressive action in the future after having acknowledged China’s claims, without looking like the aggressor?  We just severely limited our options.

China started the process of illegal annexation of the area and we just backed their play.  You’ve got to hand it to the Chinese.  They’re playing hardball and we’re just fumbling around.


(1)USNI, “U.S. Destroyer Made an ‘Innocent Passage’ Near Chinese South China Sea Artificial Island in Recent Mission”, Sam LaGrone, November 2, 2015,



26 comments:

  1. "Or, the Navy could have conducted a passage that did not conform with the Innocent Passage procedure thereby explicitly denying China’s claims. This would have required nothing more than operating a radar, pointing a gun, performing some other extremely mildly threatening act, or simply stopping for a period of time."

    I know we'll disagree on this, but here goes: I understand the reasoning. But I'm also fairly loathe to poke the dragon that hard. The fact of the matter is that these things are there, they have military capability on them, and the Chinese government is being extremely bellicose about them.

    I don't like it, but our chances of scaring the Chinese off of them is almost nil, I think. We could get in a fight over them... but I'm just not excited to have the blood and treasure and risk that would entail at this stage. I'd like to try other means. I'd continue the freedom of the seas trips because, heck, they do it to us. (That's also a weird situation. We are enforcing law of the sea ideas, but we havent signed on. The Chinese have signed on and are flouting it...) I'd like to build up our military to deal with them. (Bigger air wings. Tankers. ASW aircraft. A DE/FF that's not a supersized PC. More SSN's. Realistic AShM's re-engine and update the B-52's to carry standoff weapons in their bomb bays...) But I think pointing a gun or getting a radar lock on a structure on one of these reefs would be counter productive at this point.

    Just my $0.02

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    1. Jim, you caught the part about simply stopping for a brief period? That, alone, would invalidate the Innocent Passage procedure and still meet your criteria of non-threatening.

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    2. That's a valid point. But I don't think it will lead to anything other than China complaining. They aren't going to leave those reefs unless coerced. And the price of that is likely to be extremely high, I think.

      But you're right, its a huge concern. We have to start planning on ways of making them go away ASAP if things get bad.

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  2. Whether or not we performed an "innocent passage" procedure will be lost on 99.999% of the American and Chinese public, leadership and media. So effectively, we still accomplished our goal of the FONOPS. We contested their 12 mile territorial claim. And we did so in a way that was minimally provocative, so as to deny the Chinese Hawks a reason to respond even more militantly.

    We can still perform a not-so-innocent passage in the future, but I don't know if it will do any more to advance our case.

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    1. You completely missed the point. We did not contest their claim, we strengthened it by performing an Innocent Passage!

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    2. The present administration just handed to the Chinese on a silver platter their claim. Subi was picked for a reason because this artificial island do not generate a 12 nm territorial zone. An innocent passage just affirmed what the US was trying to deny.

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  3. You seem disappointed that WW III did not erupt over some worthless rocks. It could have escalated into nuclear war with millions of innocents killed. But now, nothing happened, and no American gives a damn, cause it doesn't matter. Move on to hyping another excuse for a massive wartime sized Navy.

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    1. You seem not to grasp the larger issue of China establishing exclusive control over a very large region through which a significant portion of the world's shipping passes. If that doesn't concern you, it should.

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    2. I am tired of seeing this worthless rock reasoning. More than $5.0 trillion of trade goes through that region annually. The one who controls the strategic waterways control the economic wellbeing of many affected nations. It is not a problem if China respects established rules. The problem is it does not and continues to create nebulous rules. Such behaviour presents an existential threat to every law abiding nations and includes many of US allies. Such behaviour unchecked will have consequences - eventually. Those who argues that they are simply rocks unfortunately are the ones hiding underneath the false security of rocks.

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    3. "I am tired of seeing this worthless rock reasoning."

      Well said.

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  4. We should not be appeasing the Chinese in any way, shape or form, they just view that as weakness. We should have been dismantling those islands as quickly as they could build them.

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    1. How do you plan on dismantling them?

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    2. We should have been employing the same tactics the Chinese are using. Fire hosing boats attempting to land supplies, heading off supply ships, bumping ships, crowding ships and boats out, landing "workers" (Marines) on the islands to construct our own facilities (if China can build on unassigned reefs then so can we), etc.

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    3. It took the present administration approx. 2 years to come round to green lighting the FONOP or should I say innocent passage. There is no political will to confront the Chinese or the Russians. It is a do nothing stupid president. Even under the right leadership, the Chinese are no push over and they are more determined to run their course than the US is prepared to risk. The US is simply outplayed in the SCS. The US need to be firm with its FONOP but if it is innocent passage in reality then I suggest it just keep the boats in port.

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    4. You're correct. Our action simply solidified and legitimized China's claims. We would have been better doing nothing.

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  5. For the most part, traffic through this region is going to or from Chinese ports carrying trade items (raw materials in, cheap goods out). Does it really matter whether ships can be intercepted by the Chinese slightly farther from their ports when just closing their ports directly would have the same effect? And that any effect on that trade or trade routes would be more damaging to China than anyone else.

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    1. John, you may be oversimplifying and underestimating the impact of shipping in this region. Here's a tiny sampling of the kinds of merchant traffic statements that abound on the Internet. These are paraphrased from a colonia.asia writing but are typical.

      Half the world's merchant fleet tonnage passes through the Straits of Malacca, Sunda, and Lombok with the majority continuing on in to the South China Sea. Tanker traffic through the Strait of Malacca into the SCS is several times greater than that through the Suez or Panama Canals. Virtually all the shipping that passes through the Malacca and Sunda Straits must pass near the Spratlys.

      This addresses only a few of the categories of shipping. Japan and Korea, for example, depends on SCS LNG routes for huge amounts of energy. Bulk dry cargo, oil, and many other types of cargo pass huge quantities through the region.

      You are correct that cessation of the shipping would harm China but the impact on the much smaller countries of Japan, Korea, and others would be enormous. In other words, China could weather such an interruption far better than anyone else.

      You are grossly underestimating the amount of shipping that passes through the region without stopping at China.

      The worldwide strategic and economic importance of the region is immense. Ceding control of the region to a country that has demonstrated an utter disdain for international laws and norms is a recipe for disaster. Given their proven track record of intimidation, lies, false claims, and wildly exaggerated interpretations of international treaties, how long do you think it would take for them to impose some sort of crippling fee on shipping if they were granted total control of the region? Think piracy writ large.

      Do an Internet search on South China Sea shipping and you'll see the enormous impact on the world if that shipping were interrupted.

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  6. I think there might be some confusion in the way the article is written and the assumptions regarding innocent passage. Is the island that the USS Lassen buzzed considered Chinese? Because most of the Spratly Archipelago is occupied by many SCS countries and I don't know the route the US took, it's possible that the declaration of IP was for the island only.

    That acknowledgement wouldn't extend China's continental 12 mile border to the Spratley's nor give China precedence to claim the entire island group. If the US had declared IP while transiting thru the SCS I would concede your point but I think this is of of 'Hey China, the USN is transiting thru shoal water to practice our navigation skills. We won't conduct any military operations while were close to your fake base.'

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    1. Jay, the route the ship took was not disclosed but the article was clear that the ship specifically passed within 12 miles of Subi Reef. China claims Subi Reef and the entire Spratlys island group.

      You may not be understanding what Innocent Passage is and how it's applied. Innocent Passage is a procedure recognized in UNCLOS. It applies only to territorial waters. It's not possible to "declare" innocent passage in international waters (ie, the South China Sea in general).

      Further, you understand the concept of precedent, right? If we implicitly recognize China's claim to Subi Reef, we also implicitly recognize their claim on the entire Spratly group.

      You might also want to do some research on China's view of the EEZ as it relates to the presence and movement of another country's ships and aircraft. Understanding China's view of an EEZ, it's easy to see why they want recognition of their claim on these artificial islands. They're not just going to claim 12 miles around these things, they're going to claim 200 miles and lock up the entire South and East China Seas.

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    2. I'd like to think I had a decent grip on IP and understand its more for straits than anything else, but I'll brush up nonetheless. But like you, ensuring that a precedence isn't established is the main concern and the US should have essentially treated the man made isles like ships. But even if the USN actions could have tacitly validated territorial waters, it would not confer or justify territorial claims. For that to occur China would have to put that application forth to the UN. They obviously don't want to take such action.

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    3. Jay, it seems clear that the Chinese understand that world legal and popular opinion is against them regarding their expansive territorial claims. They certainly can't win their case by submitting to international adjudication. Indeed, they've pointedly refused to participate in the binding arbitration case filed by the Philippines. So, what's a country like China to do when it hasn't a legal leg to stand on but wants more territory?

      The answer is exactly what the Chinese are doing. They are attempting to create a de facto possession situation. They build a base on Subi Reef, a location they have no recognized sovereignty over, and assume that over time the world will get used to their possession and not contest it. That non-contest eventually becomes de facto formal recognition. Of course, if some country were to legitimize the process by conducting innocent passage exercises through the area, thereby implicitly recognizing their claim, that would be marvelously helpful but no country would be stupid enough to do that - oh wait, we did that, didn't we?

      So, while you may be legally correct that US actions would not confer territorial claims, you are failing to see the real world implications here. China doesn't have to put forth formal application to the UN. They merely have to maintain undisputed possession for a sufficient period of time for the rest of the world to come to accept their claims. Of course, the US' policy of appeasement simply speeds up the process.

      China is following the tried and true historical method of acquiring territory - seize it and hold it until everyone else eventually recognizes your claim. You've got to admire their strategy and resolve!

      Is there another way to sum up this whole situation? Yes - the old saying, possession is nine tenths of the law, applies here.

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  7. Also, maybe the use of the term innocent passage was simply an attempt to cloud the issue as opposed to relate it back to maritime law.

    http://news.usni.org/2015/11/04/opinion-uss-lassens-transit-of-subi-reef-was-not-so-innocent

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  8. The US should had just parked a Cruiser group in Singapore and it will do more to show the Chinese than to proclaim innocent passage

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