The US finds itself in an invidious double bind on freedom of navigation (FON) in the South China Sea. Having ramped up expectations in recent months that the US Navy is about to conduct a freedom of navigation operation in the Spratly Islands, it is damned if it doesn't. This first snare is a product of White House vacillation. If the operation goes ahead, however, Washington risks sailing into another trap by handing Beijing an excuse to militarise its artificial islands.
After months of talking the talk on freedom of navigation but apparent paralysis on walking the walk, if the US does not proceed with some physical demonstration its diminished stock of credibility on the South China Sea may be irreparably damaged. Failure to act now will be viewed as another Obama foreign policy "red-line" rowed back from, further undercutting the US rebalance to Asia.
Earlier this year, Secretary of Defence Ashton Carter did a decent job of communicating US resolve in the context of China's artificial-island-building, without appearing overly provocative. "There should be no mistake;" Mr Carter told the Shangri-La Dialogue delegates in May, "the United States will fly, sail, and operate wherever international law allows". Yet Washington's failure to follow through in the South China Sea begins to resemble a self-inflicted mistake.
The short explanation is a risk-averse White House reluctant to rock the boat of Sino-US relations in the lead-up to President Xi Jinping's state visit. Despite a gathering chorus of US admirals and Beltway "leakers" advocating FON operations in the South China Sea, the net outcome has been policy wavering and mixed messaging. Consequently, Mr Carter's oft-repeated words have taken on the hollow ring of a mantra.
By sailing within 12 nautical miles of the artificial islands that China has built in the Spratlys since 2013, the US Navy would not be countering China's sovereignty claims per se, but asserting its legal right to operate there – against a backdrop of mostly non-physical challenges against US naval vessels and aircraft in the South China Sea. At least three of the seven diminutive features on which China has collectively heaped 3000 acres (1200 hectares) of sand and concrete would be submerged at high tide in their natural state. Under international law, they are not capable of generating jurisdiction or restricting access to the surrounding waters and airspace beyond a 500-metre safety zone for artificial marine structures.
While the US Navy is both an advocate of and adherent to the UN Convention on the Law of the Sea, American leadership on freedom of navigation remains hampered by the Senate's failure to ratify the treaty. Also, China is not the only Asian state engaged in creeping maritime jurisdiction. The US has previously conducted FON operations in waters claimed by several south-east Asian countries. Any US operational assertion in the Spratlys should also include features occupied by them, to demonstrate that China is not being singled out arbitrarily.
Assuming the US FON action, or possibly a sustained operational program, goes ahead and achieves its basic demonstration aims, restoring a measure of US credibility and perhaps even encouraging China to clarify its maritime claims, there will still be a lingering sense that this was a "better-late-than-never" mission that should have been done earlier, without fanfare.
By belatedly making good on its long-trailed intentions, the US also risks falling into a Chinese trap. The risk of a naval confrontation with China is low. While Beijing's diplomatic response will be shrill, there is scant appetite for confronting the US "kinetically" beyond the kind of shadowing now commonplace for US naval vessels operating in the South China Sea. Moreover, China lacks military infrastructure around the islands from which to support an operational response.
Therein lies the trap. In the US last month, President Xi said China would not militarise the Spratly Islands – a commitment that Julie Bishop said Washington and Canberra would hold Beijing to, at the recent AUSMIN meeting. By taking the US Navy within 12 nautical miles of the artificial features occupied by China, Washington may be gifting China's military leaders the perfect opportunity to order "defensive measures" ushering in the next, overtly military phase in the island-building project. Ahead of Xi's US state visit, Chinese naval ships were reported to have entered US territorial waters off Alaska. What better lure could there be for the US Navy to respond in kind?
US strategic planners may have resigned themselves to the eventual establishment of Chinese bases in the Spratlys, regardless. But asserting freedom of navigation in the South China Sea in the weeks and months ahead will require more sustained commitment, guile and imagination than a simple sail-by.