China in Alaska, part II: turning the other cheek

If foreign warships intruded into American territorial waters near a critical and undefended military base, you might expect that reasonable countermeasures be taken, like shadowing the vessels with military aircraft, dispatching some troops to shore up the garrison, and summoning the ambassador of the offending state to demand an explanation. But this is 21st century America, where NASA’s primary mission is offering therapy to the Muslim world and international LGBT rights are considered a national security priority.

Nothing frustrates this Administration more than the intrusion of great power politics on its post-modern foreign policy agenda. Recently this was on display by President Obama’s reaction to the Russian intervention in Syria (“This is not some superpower chessboard contest”). Last month it was visible in the confused response to the PLAN’s Alaskan pleasure cruise.

First, there was the denial of any problem whatsoever, as White House spokesman Josh Earnest told the press:

These ships were operating in international waters, and there is no indication that their activities were threatening to the United States in any way. So for that reason, I don’t know if it will come up in the conversations in the weeks ahead between the President and his Chinese counterpart.

After news was leaked – possibly anonymously by a military official – that the Chinese ships crossed U.S. territorial waters, the official response of the U.S. government was to provide legal justification for the intrusion:

“This was a legal transit of U.S. territorial seas conducted in accordance with the Law of the Sea convention,” said Pentagon spokesman Cmdr. Bill Urban.

It’s a bit disconcerting to have an American military officer make excuses for the military forces of a rival power.

Finding a legal rationale for the Pentagon’s inaction quickly became a priority because as the Washington Post reported, no tangible countermeasures had been taken:

Defense officials said they did not move any Navy ships in response to China’s vessels. The Defense Department does not plan to provide additional updates on the location of the ships, indicating that Defense officials probably consider the issue resolved.

U.S. officials seized upon the principle of “innocent passage,” a provision of the UN Convention on the Law of the Sea treaty (UNCLOS) that permits foreign ships to transit the territorial waters of another state, without notice, provided that they do not engage in any threatening activities. To be more specific, Section 1, Article 19 of the treaty states that:

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such a passage shall take place in conformity with this convention and with other rules of international law.

It is plausible that the incident qualifies under this standard, but just barely so. Section 2 of Article 19 lists 12 categories of “prejudicial” activities that would disqualify ships from the innocent passage standard, including “any exercise or practice with weapons of any kind,” “any act aimed at collecting information to the prejudice of the defense or security of the coastal state,” and “the carrying out of research or survey activities.” It is highly doubtful that five military ships sailing past the military base of a rival power could credibly disavow any of these.

For that reason, Beijing would likely say its ships off Alaska weren’t conducting surveillance, although they probably were, said Taylor Fravel, an expert on China’s military at the Massachusetts Institute of Technology.

When Pentagon officials invoked innocent passage to explain China’s actions, they were grasping at straws.

It is also notable that only American officials have bothered to justify China’s actions; Beijing has remained mum on the incident. Given Beijing’s utter contempt for the Law of the Sea, it is almost farcical that the U.S. would proffer Beijing the innocent passage explanation. The level of irony here is astounding: America, which abides by UNCLOS but has not ratified it, uses UNCLOS to justify the intrusion of its own territorial waters by China, which has ratified UNCLOS but does not abide by it.

After the Pentagon claimed “innocent passage” on behalf of China, voices outside the government latched on and added some bizarre elaborations.

“As a matter of fairness and equity, these operations are a big step forward for U.S. interests in that Beijing now has no basis to object to similar passage through China’s territorial sea by the U.S., for instance in vicinity of China’s islands in the South China Sea,” said Peter Dutton, director of the China Maritime Studies Institute at the U.S. Naval War College.

I have some bad news for you, Mr. Dutton. Neither China, nor any other rival power cares one whit about “fairness and equity.” I also have a reading list for you concerning how the international system works.

The notion that China’s maritime adventurism is somehow a good thing was echoed by David Titley of the Center for a New American Security, a left-wing think tank that supplies a good amount of intellectual capital to President Obama’s foreign [non] policy.

Titley said the incident – and especially the lack of a dramatic U.S. response – could also have a softening effect on China’s position on maritime disputes in the South China Sea … Titley said a shrug by U.S. officials about this week’s activity in Bering Sea may lead leaders in Beijing to ratchet down their own response to foreign presence off China.

“This is how mature superpowers operate,” he said. “You don’t go to general quarters every time there’s a ship operating legally.”

A comfortable and convenient idea. And Beijing’s reply?

“What on earth makes the United States think China should and will tolerate it when U.S. surface ships trespass on Chinese territory in the South China Sea?” said a commentary published by the official Xinhua News Agency on Saturday.

Aside from being hopelessly naïve, the “fairness” argument relies on a false comparison. The Aleutian Islands are not piles of dredged coral, hurriedly created as a geopolitical fait accompli. Nor did the U.S. Navy recently muscle them away from a rival claimant state. Likening China’s operation in the Aleutians with America’s presence in the South China Sea only gives legitimacy to China’s aggressive territorial claims.

The validity of the comparison is further undermined by the scarcity of corresponding American actions. The U.S. operates in the South China Sea, but in recognized international waters. It does not claim “innocent passage” to enter Chinese territorial waters, and only yesterday did it sail within 12 miles of reclaimed features in the Spratlys, after first signaling its intent do so nearly three weeks ago. A step in the right direction, but to have meaning and effectiveness, these operations must be sustained; a one-and-done flag-waving exercise will not be sufficient.

There were other bogus comparisons. When the Washington Post reported on the story, it quoted an unnamed official who apparently has no understanding of maritime law:

The ships did not violate international law, which allows countries to transit other nations’ seas under what is called “innocent passage,” the official said. He likened China’s movement through U.S. waters off Alaska to the activities of U.S. ships in the Strait of Hormuz, off the coast of Iran.

The Naval Institute Press had a succinct reply to that:

Innocent passage differs from a warship moving through an internationally recognized transit area like the Strait of Hormuz in the Persian Gulf or the Strait of Gibralter. Warships are not subject to innocent passage limitations during those transit passages.

The PLAN ships moving through the Aleutians would be the legal equivalent of a U.S. destroyer moving through the strait separating mainland China from Hainan Island, Kraska [James Kraska, Naval War College professor] said.

And if a U.S. destroyer tried sailing through the Qiongzhou Strait, it would be lucky to emerge on the other side still afloat.

The U.S. has never been good at power politics; strength breeds contempt, and having been the world’s only superpower for two decades following the Cold War, Americans blissfully purged the geopolitical awareness they had acquired in the decades after World War II. But this ignorance has only been reinforced in the last few years. The Administration seems to regard news of foreign policy setbacks as partisan distractions from the all-important domestic agenda, and much of the media complies by suppressing and ignoring such stories.

America is like the proverbial frog that does not realize it’s slowly being boiled to death.

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