US Freedom Of Navigation Operations In The South China Sea Are Counter Productive – Analysis

For many years the U.S. has conducted Freedom of Navigation Operations (FONOPs) in the South China Sea in what it claims is a defense against potential threats to commercial shipping.  It also justifies its military presence there as preventing China from bullying its rival claimants.  But now its military maneuvers in defense of a country being bullied by China have been misunderstood as a possible FONOP against the very country – Malaysia – it was trying to help.  This is more evidence that its FONOPs there are unwelcome and counterproductive and should be replaced by diplomacy.

On 18 April a Chinese survey ship accompanied by coast guard and maritime militia vessels approached a disputed area where a drill ship – the West Capella – was operating under contract to Malaysia’s national oil company Petronas.     Although it sent a naval auxiliary vessel to observe the Chinese vessels it’s response was muted.

Zubil Mat Som, the head of Malaysia’s Maritime Enforcement Agency said “We do not know [the survey ship’s] purpose but it is not carrying out any activities against the law”. https://www.thestar.com.my/business/business-news/2020/04/18/chinese-and-malaysian-ships-in-south-china-sea-standoff-near-oil-field   

Although China claimed the operations of its vessels were ‘normal’, the U.S. alleged that they were intimidating the drill ship.  There had been a similar but much more dangerous incident involving this Chinese survey skip operating in Vietnam’s claimed 200 nautical mile Exclusive Economic (EEZ) in 2019 and perhaps it conflated the two activities. It is not clear how a survey ship –even one accompanied by coast guard vessels– is threatening to another ship. In this case, the Chinese vessels were exercising their freedom of navigation —the same rationale that the US Navy uses for its intimidating maneuvers against China’s claims. 

Nevertheless, the U.S. apparently saw this action as a Chinese test of its “position and credibility in Asia”. https://foreignpolicy.com/2020/05/14/south-china-sea-dispute-accelerated-by-coronavirus/  It also apparently considered it an opportunity to demonstrate its solidarity with the smaller Southeast Asian countries and hopefully encourage them to stand up to China and thus irrevocably side with America. 

U.S. Pacific Fleet Commander Admiral John Aquilino declared that “The Chinese Communist Party must end its pattern of bullying Southeast Asians out of offshore oil, gas, and fisheries.”  American forces will “stand with regional friends and partners to resist coercion _ _”.  https://news.usni.org/2020/05/08/u-s-sends-warships-on-patrol-near-south-china-sea-standoff 

The guided missile cruiser Bunker Hill, the guided missile destroyer Barry and the amphibious assault ship USS America were deployed to ‘exercise’ with an Australian frigate in the vicinity of the drill ship.   In case China and the region did not get the message, the littoral combat ship (LCS) USS Montgomery and cargo vessel USNS Cesar Chavez operated in the same area a few days later, followed by the LCS US Gabriella Giffords.

But the situation did not play out the way the U.S. had hoped.  Malaysia has been reluctant to challenge China openly due to its weak maritime forces and its economic reliance on it for investment and exports. Its past response to China’s aggressiveness in the South China Sea has been traditionally muted and behind the scenes.  Perhaps the U.S. did not want to give Malaysia the opportunity to object to its military presence.

For whatever reason it appears that the US warships were sent without invitation, consultation or notification, thus confusing Malaysia.  https://warontherocks.com/2020/05/learning-in-the-south-china-sea-the-u-s-response-to-the-west-capella-standoff/ Malaysia has excessive claims that run counter to the United Nations Convention on Law of the Sea (UNCLOS), which the U.S. has challenged in past freedom of navigation operations.  It requires prior permission for foreign military activities in its EEZ.  Malaysian leaders knew that the U.S. would not notify Malaysia that its warships were entering its EEZ because the U.S. rejects that requirement.  As the U.S. warships steamed toward Malaysia’s EEZ, its decision makers could not be sure whether the U.S. was coming to their aid, or challenging their maritime claims as it has done before.

Malaysia’s Foreign Minister Hishammuddin Hussein said  in reference to this incident, “While international law guarantees the freedom of navigation, the presence of warships and vessels in the South China Sea has the potential to increase tensions that in turn may result in miscalculations which may affect peace, security and stability in the region.”

This reaction and confusion could have been predicted and avoided if the U.S. was not so stubborn and disingenuous regarding its FONOPs. 

The U.S. claims its FONOPs in the South China Sea are intended to preserve and protect freedom of commercial navigation for itself and others that is threatened by  claims and actions that are incompatible with UNCLOS – particularly those of China.  One problem for the U.S. and its would- be supporters is that the U.S. has not ratified UNCLOS– yet it is unilaterally interpreting it and enforcing that interpretation.  |Even more confusing to the Southeast Asian states, the U.S. conflates freedom of commercial navigation with its real priority — freedom of navigation for its close in probes by warships and intelligence, surveillance and reconnaissance (ISR) vessels and aircraft mainly targeting China.

Given that claims by all littoral ASEAN members except Singapore and Brunei have been targets of US Navy FONOPs, it is safe to say that they do not approve of this gunboat diplomacy –at least against themselves.  They also fear that it will be destabilizing.

Even US stalwart Singapore has reservations.  Its Defense Minister Ng said that “Some of the [South China Sea] incidents are from assertion of principles, but we recognize that the price of any physical incident is one that is too high and unnecessary to either assert or prove your position.”  This criticism seemed directed at the U.S. use of warships to assert its legal position. https://www.channelnewsasia.com/news/asia/asean-nations-express-concern-over-us-china-tensions-in-south-10847704 

Some Indonesian policymakers have long been  suspicious of US intent and worry about the potential destabilizing effect of US-China competition. Then Indonesian Defense Minister Ryamizard Ryacudu suggested that “if regional countries can manage the SCS on their own, there is no need to involve others.” Luhut Pandjaitan, then coordinating minister for political, legal and security affairs, once declared in a veiled criticism of both US and China “… we don’t like any power projection.” 

Philippines President Rodrigo Duterte has said that ” _ _ the threat of confrontation and trouble in the waterway came from outside the region.” https://ww.scmp.com/news/china/diplomacy/article/2173174/south-china-sea-asean-beijing-continue-wrk-towarss-code  Then Malaysian Prime Minister Mahathir Mohammad  has argued that “big warships [in the South China Sea] may cause incidents and that will lead to tension.” https://www.straitstimes.com/asia/se-asia/mahathir-tells-us-no-warships-in-asean-waters-but-small-patrol-boats-are-fine

The point is that the arrogance, stubbornness and disingenuousness of the U.S. in pursuing its FONOPs in the face of the lack of regional support has now become counterproductive.

No country should acquiesce to jurisdictional claims that it considers disadvantageous or illegal. But non-acquiescence can effectively be demonstrated by written statements and diplomatic communication instead of gunboats. The diplomatic option seems to be sufficient for other nations, including maritime powers whose rights the U.S. claims to be protecting. The U.S. should revise its approach to this issue.  In particular it should use diplomatic protest and refrain from use of warships unless commercial freedom of navigation is truly threatened.