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Should The U.S. Sail Into Territorial Sea Of China’s Islands?

The South China Sea dispute has raised interesting questions concerning the right of passage of ships and aircraft. In recent months, U.S. officials have discussed the possibility of sending ships and aircraft within the territorial waters (12 nautical miles) of China’s claims in the South China Sea. This issue is receiving increased interest as in late August, a People’s Liberation Army Navy (PLAN) task force sailed into U.S. territorial waters off the Aleutian Islands. Additionally, James Kraska of CSIS’s Asia Maritime Transparency Initiative has written on the legal rationale and why the U.S. could and should sail into China’s territorial waters. Regardless, even if it is legal, the U.S. should exercise caution in whatever action it takes as such a move will undoubtedly be considered a provocation by Beijing.

China’s passage into U.S. territorial waters

In late August, a PLAN flotilla consisting of three warships, one amphibious ship and a supply ship, sailed within 12 nautical miles of the Aleutian Islands. These ships had recently taken part in joint exercises with the Russian Navy as part of Joint Sea 2015. While the situation received widespread attention as it was a move not typical of the PLAN and viewed by the media as a provocation, the fact is that, under international law, it was legal.

Countries are allowed to transit the territorial seas of other countries under the right of innocent passage. This is codified in the UN Convention on the Law of the Sea (UNCLOS), which states: “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.”

The response from Washington was rather...