These US operations in the South China Sea may violate international law, increase the risk of confrontation and are politically motivated.
On January 20, the US guided missile destroyer Benfold executed a freedom of navigation operation (FONOP) near China’s claimed and occupied Paracel Islands. This in-your-face FONOP was undertaken despite rocky relations and China’s increasingly robust kinetic responses to what it considers threats to its sovereignty and security.
This particular challenge was nothing new in and of itself. Indeed, it was a repetition of many similar FONOPs contesting the same specific Chinese claims. But what was unusual was a nuance in the US explanation of the event. According to a statement from the US Seventh Fleet, “unlawful and sweeping maritime claims in the South China Sea pose a serious threat to the freedom of the seas, including the freedom of navigation and overflight [and] free trade and unimpeded commerce [emphasis added]”.
This seemed to implicitly acknowledge that there are different freedoms of navigation – that for military vessels and aircraft and that for commercial vessels. This was a recognition of increasing state practice that differentiates between the “two freedoms”. More than 40 states require prior permission or notice for warships to undertake innocent passage in their territorial seas.
The two types of vessels perform different functions and have different navigational needs. Military intelligence collection vessels and aircraft want to get as close as possible to China’s defences as they can – legally or otherwise. Commercial vessels need to use the shortest and least hazardous routes, or major shipping lines. But major shipping lines in the South China Sea do not go through China’s claims to territorial seas – and they do not need to.
The US FONOP program has been criticised for conflating the universally supported freedom of commercial navigation with the freedom for its military vessels to intimidate and spy on its opponents – in this case China. It implies that China’s angst about military vessels also applies to commercial vessels. But it had become obvious in the region that other than its very brief safety-motivated bans on vessel and air traffic near its military exercises, China had not interfered physically with commercial freedom of navigation and was unlikely to do so in peacetime. Indeed, if the US purpose is to demonstrate freedom of commercial navigation, why does it not send civilian vessels to do so instead of warships?
US military vessels and aircraft collect intelligence on China’s bases in the Paracels and Spratlys that “are responsible for defending China’s outposts” and claims in the Spratlys. They do so by “operating radar installations, ensuring airfield support for aviation forces training, commanding maritime militia forces, implementing engineering projects, supporting orbital management of spacecraft, and providing air defence”.
As in most – if not all – of US FONOPs against China’s claims, the Benfold challenged restrictions on warships, not commercial vessels. This particular FONOP challenged the territorial sea regime of China requiring prior notification for warships to undertake innocent passage in its territorial seas. It also challenged China’s claim to straight baselines enclosing the Paracels that – if accepted – would legally prevent its warships and warplanes from getting closer to China’s defences thereon.
The statement also claimed that “all of our operations are conducted in accordance with international law … regardless of current events”. The former is questionable and the latter is based on the false premise that other countries view these actions and their timing as apolitical.
Some FONOPs may violate the UN charter that prohibits the threat of use of force against the territorial integrity of any state. According to the UN Convention on the Law of the Sea (UNCLOS), a nation has sovereignty over the waters, airspace and ocean floor within its 12 nautical mile territorial sea. US FONOPs have violated the innocent passage regime in China’s claimed territorial sea around Mischief Reef. By doing so they have purposely demonstrated that the US does not recognise China’s claim to sovereignty over the feature. So these warships can be interpreted as a threat to use force against China’s claimed territorial integrity. Indeed, most countries view a top-of-the line warship from an unfriendly country violating their laws as a threat of use of force and a belligerent act.
According to UNCLOS, features such as Mischief Reef that are below water at high tide are not subject to sovereignty claims by any state. This interpretation was supported by the arbitration panel that rendered a decision for the Philippines against China. But that decision applies only to the Philippines and China. The US was not and is not a party to UNCLOS or this dispute but it has taken it upon itself to enforce its position thereon.
UNCLOS also does not support China’s straight baselines enclosing the Paracels. But state practice varies and many countries have similar claims. Because the US has not ratified the convention, China and others think it has no right to unilaterally interpret it and threaten a country’s claimed territorial integrity. If the US had ratified UNCLOS it could take China to arbitration on these issues. But because it has not, it has been reduced to using the threat of force to get China to comply with its views.
With the phrase ”regardless of current events”, the US is trying to maintain the fiction that FONOPs are not political. Indeed, Peter Dutton and Isaac Kardon, professor at the US Naval War College, claim that ”FONOPs are not primarily designed to send targeted signals of resolve, reassurance, commitment, deterrence, or any other of the many political-military signals the United States sends through its naval operations”. Moreover, under the Trump administration, decision-making for particular FONOPs was unwisely moved out of the White House to the Pentagon in an attempt to maintain the charade that they are not “political”. The Pentagon submits an annual FONOP plan for approval by the White House. Individual FONOPs supposedly follow this plan at the will of the Pentagon.
But this is nonsense. US FONOPs against China have always had a political purpose – to intimidate China into changing its policy. FONOPs are also designed to “reassure America’s allies and partners in the region of America’s commitment”.
Perhaps the most hypocritical portion of the US statement is that “all nations, large and small, should be secure in their sovereignty and free from coercion”. Yes indeed. But it appears to China that the US is blatantly violating this principle by trying to intimidate and coerce it into abandoning its claims. This is also the view of other countries regarding US FONOPs against their claims.
I argue elsewhere that US FONOPs are a violation of international law and a cover for freedom to spy. They increase the risk of confrontation and conflict, are not welcomed by South-East Asian states and are ineffective and legally unnecessary. The US needs to reconsider the FONOPs program in general and against China in the South China Sea in particular.