On 11 February the US Navy conducted yet another Freedom of Navigation Operation (FONOP) sailing within 12 nautical miles (nm) of Mischief Reef and Second Thomas Shoal in the South China Sea. https://news.usni.org/2019/02/11/41017
China occupies Mischief Reef and the Philippines occupies Second Thomas Shoal. As usual, China strenuously objected. Chinese foreign ministry spokeswoman Hua Chunying said “The relevant actions of the US warships violated Chinese sovereignty, and undermined peace, security, and order in the relevant sea areas,” and called for the U.S. to “immediately stop its provocative actions_ _” https://www.maritime-executive.com/article/two-u-s-destroyers-conduct-fonops-near-mischief-reef
A Chinese military spokesperson said Chinese warships and aircraft were dispatched to ward off the US destroyers_ _”. https://www.washingtontimes.com/news/2019/feb/13/inside-the-ring-us-destroyers-in-disputed-waters/The two sides have a history of dangerous incidents at sea and have met several times to try to agree on ways to avoid them –apparently without success. What is behind these incidents and what is the prognosis for their mitigation?
This latest FONOP stood out in that it showed an increased pace of such challenges coming only a little over a month since the last one in; it involved two US warships instead of the usual single one; and it targeted a Philippines-occupied feature as well as one occupied by China–perhaps because it was trying to appear that it was not singling out China. The details of the FONOP have not been revealed so it is unclear whether it was a challenge to China’s requirement for prior permission for warships to enter its territorial sea or whether it was a demonstration of a lack of recognition of territorial sovereignty over the low tide features themselves. The timing of the FONOP was also a bit unusual because it came on the heels of US Chief of Naval Operations Admiral John Richardson’s meetings in Beijing with senior Chinese military leaders that focused on mitigating dangerous incidents between their warships. It also came on the very same day that the latest round of trade negotiations was beginning in Beijing. The previous FONOP also came during a round of the contentious trade talks.
The U.S. Navy insists that its FONOPs “are not about any one country, nor are they about making political statements” and thus there was no link between the FONOP and the trade talks. https://news.usni.org/2019/02/11/41017 That may well be the US intent. But that is not how China’s nationalists likely see it. They will probably think that the U.S. had such a lack of respect for China and the atmosphere of the trade talks that it went ahead with the FONOP even though it knew it would embarrass China’s leaders and might cast a pall over the negotiations. Given the context of the broader and more fundamental US-China struggle for dominance in Asia, this public display disrespect does not bode well for mitigating dangerous maritime incidents
The China –US differences over FONOPs are more political and strategic than legal. Nevertheless the US characterizes the dispute as ‘legal’ and that China is in the wrong. The U.S. maintains that it is simply exercising its ‘right’ to “fly, sail and operate wherever international law allows” including the right of its warships to sail in innocent passage through foreign territorial seas without prior permission. https://www.militarytimes.com/news/your-military/2018/11/09/us-pushes-back-at-chinas-warning-to-avoid-islands-it-claims-in-south-china-sea/
China and many other nations require prior permission for warships to enter their territorial sea. Indeed, in Asia alone, India, Malaysia, and US ally Thailand do not allow foreign military activities in their EEZs without permission, let alone their territorial seas, and Indonesia, Taiwan and Vietnam require permission for foreign warships to enter their territorial seas. China alleges that these FONOPs are a threat to its sovereignty, integrity and security. It also said the FONOP “violated China’s laws and relevant international laws_ _”. https://www.maritime-executive.com/article/two-u-s-destroyers-conduct-fonops-near-mischief-reef
A Chinese military spokesperson said Chinese warships and aircraft were dispatched to ward off the US destroyers- -“. https://www.washingtontimes.com/news/2019/feb/13/inside-the-ring-us-destroyers-in-disputed-waters/ So there is disagreement as to the interpretation of the relevant international law and who is violating it. The proximate cause of these incidents is that both are using their military to enforce their respective interpretations.
The US argues that China’s position is not supported by the UN Convention on the Law of the Sea that China and some 167 other parties that have ratified it. Article 24 of the Convention supports the US position. It reads “The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea_ _ . In particular, _ _ the coastal State shall not: (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage_ _”. But the Convention also provides in its peaceful purpose/peaceful use clauses that States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State_ _. China seems to think that at least some if not all US FONOPs are inconsistent with this provision.
China also claims certain rights within its nine-dash line claim. But an international arbitration panel set up under the auspices of the Convention to hear a Philippines complaint of violation of the Convention ruled that China’s “claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect_ _ “.
Moreover it ruled that none of the features in the Spratlys are legal islands and thus are not entitled to 200 nm Exclusive Economic Zones [EEZs] and continental shelves. Regarding China’s claims to (and occupation of) Mischief Reef (and other similar features like Second Thomas Shoal), the panel ruled that they are only low tide features and not even entitled to a territorial sea. China rejected the entire arbitration process and its decision.
So existing international law does not support China’s position. But some US actions may also be of questionable legality. There is no enforcement mechanism for the Convention or arbitration decisions made under its auspices. So the U.S. has unilaterally assumed the role of enforcer of both the Convention and this arbitration decision—although it is not a party to either. Because the U.S. has not ratified the Convention, China and others argue that its unilateral interpretation thereof, let alone its enforcement has little credibility and legitimacy.
This is where politics and strategy seem to trump ‘legalities’. On 12 February in the aftermath of this latest incident, Admiral Phil Davidson, the Indo-Pacific Commander told a US Senate panel that “Through fear and coercion, Beijing is working to expand its form of ideology in order to bend, break and replace the existing rules-based international order”. https://news.usni.org/2019/02/12/41070
China and some others with whom the U.S. disagrees see the US unilateral enforcement of the Convention with warships as both hypocritical and worse, a threat to use force. They say U.S. non-acquiescence to China’s claims could be effectively and sufficiently demonstrated by verbal and written diplomatic communiqués rather than “gunboat diplomacy.”
Refraining from ‘in your face’ use of warships in favor of diplomatic protest is more consonant with the UN Charter. It requires that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”. According to William Aceves of California Western School of Law “the notion that states must take action which may lead to a violent confrontation or lose their rights under international law is inconsistent with the most basic principles of international law.”
The use of warships to enforce its interpretation of the applicable law has been criticized by several countries in the region even though they may agree with the US interpretation itself. Singapore’s Defense Minister Ng Eng Hen said that “Some of the 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.”
Philippines President Rodrigo Duterte 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 Malaysian Prime Minister Mahathir Mohamad added 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
A compromise seems out of reach in the short term. Davidson declared that “The U.S. will continue the recent [increased] pace of freedom of navigation operations in the South China Sea and will include allies and partners in future missions”. https://news.usni.org/tag/adm-phil-davidson Given US and China intransigence regarding US FONOPs, and the conflation of law, politics and strategy, the potential for more incidents continues and may even increase as relations further deteriorate.
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