Don’t go wobbly on freedom of navigation in the South China Sea

Author: Raul (Pete) Pedrozo, United States Department of Defense

In a recent East Asia Forum article, Sam Bateman criticised a decision by the US Secretary of Defense Ashton Carter to develop military plans for more assertive freedom of navigation (FON) operations in the South China Sea (SCS). Specifically, Bateman asserts that ‘there are significant legal, operational and political risks involved with these operations’. While there may be risks associated with conducting FON operations in proximity of China’s man-made islands in the SCS, much of what Bateman states in support of his position is misplaced.

US warship SNS Safegurad is anchored at a port on the island of Palawan, western Philippines, 23 June 2015. The Philippines are holding separate naval drills with two of the country's top military allies, the United States and Japan, near the disputed South China Sea. (Photo: AAP)

First, Bateman alleges that the US is only concerned with China’s reclamation work in the SCS, which could give the impression that the US has abandoned its position of neutrality in the sovereignty disputes themselves. But, despite China’s assertive behaviour in the SCS over the past 40 years, starting with the 1974 invasion of the Paracels and culminating with its current reclamation activities encompassing more than 2000 acres (800 hectares), the US has maintained its neutrality regarding the sovereignty disputes. At both the US Pacific Command change of command ceremony and the Shangri-La Dialogue in late May, Carter stressed that ‘there should be an immediate and lasting halt to land reclamation by all claimants’.

Second, Bateman questions the legality of FON operations in the territorial sea, stating that ‘diverting from the normal passage route between points A and B just to demonstrate a right of passage’ does not constitute innocent passage. Bateman cites the provisions from the UN Convention on the Law of the Sea (UNCLOS) that innocent passage should be ‘continuous and expeditious’ and should not involve ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State’.

There are a number of problems with Bateman’s analysis. To begin, nothing in UNCLOS suggests that a ship engaged in innocent passage must transit in a straight line between point A and B. All ships, including warships, enjoy a right of innocent passage through the territorial sea. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Legally, it shall be considered prejudicial only if a foreign ship engages in any of the 12 prohibited activities listed in Article 19. Merely transiting the territorial sea is not one of these legally enumerated activities, a fact confirmed by the International Court of Justice in the Nicaragua v United States case.

Additionally, UNCLOS allows a coastal state to designate sea lanes and traffic separation schemes (TSS) in its territorial sea for safety of navigation purposes, which foreign ships exercising the right of innocent passage must use. But no such sea lanes or TSSs have been established in the SCS.

Moreover, as Bateman correctly points out, man-made islands constructed on submerged features are not entitled to a 12-nautical mile (nm) territorial sea. Therefore, US ships and aircraft can legally conduct operations within 12 nm of the feature. Furthermore, because the US maintains a position of neutrality over the sovereignty disputes, it does not recognise Chinese sovereignty over any of the SCS features.

Third, Bateman asserts that ‘FON operations are inherently dangerous’. Due to the risks involved, the FON program is administered with great caution. Since its inception in 1979, hundreds of FON assertions have been conducted by US ships and aircraft around the world. Each operation is deliberately planned, legally reviewed and approved at the highest levels of government. With a handful of exceptions, these operations have been conducted peacefully and professionally without interference from the coastal state.

Fourth, Bateman rebukes the US for criticising Chinese vessels for lacking professionalism and failing to follow the international rules for preventing collisions, indicating that that the ‘US Navy has experienced several accidents in recent years as a consequence of its own navigational errors and poor seamanship’. While US naval vessels have been involved in mishaps as a result of poor seamanship, the big difference is that poor seamanship by US officers is generally inadvertent, while poor seamanship and lack of professionalism on the part of Chinese officers has tended to appear deliberate.

Fifth, Bateman indicates that regional nations may not support increased US presence in the SCS, citing a statement by the Vietnamese foreign ministry. But this is at odds with the success of ongoing US engagement in the region. Singapore invited the US to forward deploy four frigates to the small country. Then, the US and Australia signed an agreement that will more than double the number of US troops training in northern Australia.

Similarly, the US and the Philippines signed the Enhanced Defense Cooperation Agreement that will enable US forces to access Philippine bases and facilities, as well as pre-position materiel in the Philippines for military and humanitarian missions. Of greater significance is the recent signing of the US–Vietnam Joint Vision Statement on Defense Relations, which opens new opportunities for enhanced US–Vietnamese defence cooperation.

Finally, Bateman claims that ‘by provoking China in such an aggressive and unnecessary manner, it can only make the current situation worse’. Politics aside, FON operations are a lawful exercise of navigation and overflight rights and freedoms, and other lawful uses of the sea and airspace, available to all nations under international law.

The US will not acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

Captain Pedrozo is former professor of international law at the Naval War College and is now a Deputy General Counsel for the US Department of Defense. He previously served as Staff Judge Advocate, US Pacific Command, and Special Assistant to the Under Secretary of Defense for Policy. The views expressed do not necessarily represent the position of the US Government or the US Department of Defense.

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