Freedom of navigation not rocking the boat in the South China Sea

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

Recent statements suggest that the United States will soon conduct freedom of navigation (FON) operations against China’s artificial formations in the South China Sea (SCS). But there is far more handwringing going on than necessary, as demonstrated in a recent East Asia Forum article in which Mark Valencia warns that proposed FON challenges are ‘ill-advised, and even dangerous’.

There are always risks associated with conducting FON operations. But in light of recent posturing by both sides, failure to conduct a FON in the vicinity of China’s manmade islands will cause irreparable harm to US strategic maritime mobility and credibility in the Asia Pacific.

Valencia correctly notes that China claims sovereignty over all the features in the SCS. But four other nations and Taiwan reject Beijing’s claim, which is not recognised by the United States or any other nation. Establishing maritime zones is a function of sovereignty over land territory. Under international law, a state may establish a 12 nautical mile territorial sea and the sovereignty of the state extends to the territorial sea and the airspace above it. If sovereignty over a feature is not established or recognised, it follows that any maritime zone claimed (which China is yet to do) for that feature is null and void.

Until the sovereignty issue is resolved, no nation (including China) can claim maritime zones around these features. In the meantime, all nations (including the United States) can legally sail or fly within 12 nautical miles of the features.

Valencia then makes the astonishing statement that sailing a warship into the territorial sea of another country to ‘demonstrate the right of free navigation could also be construed as a threat to use force’ in violation of the UN Charter and United Nations Convention on the Law of the Sea (UNCLOS).

Not true. All ships (including warships) enjoy a right of innocent passage through the territorial sea under Article 17 of UNCLOS. All ships enjoy high seas freedoms of navigation and other internationally lawful uses of the sea related to these freedoms in exclusive economic zones, subject to having ‘due regard’ to the rights and duties of the coastal state.

UNCLOS makes a distinction between ‘threat or use of force’ and routine military-related activities that do not violate the proscription against ‘armed aggression’. The UN Security Council and the International Court of Justice determined that military activities that are peaceful and do not constitute ‘armed aggression’ including intelligence collection and military maneuvers, are not prohibited by UNCLOS.

Valencia then claims that in order to maintain its ‘neutrality’ in the SCS dispute, the United States must also challenge other nations’ claims in the SCS. But since its inception in 1979, the FON program has even-handedly challenged illegal claims by all countries. The United States has challenged unlawful claims of Vietnam, US allies and, of course, China. Operational challenges are conducted against potential adversaries and competitors, as well as allies, partners and other nations. In Fiscal Year 2014, for example, the United States challenged the excessive claims of seven allies, seven partner states, three competitors or adversaries, and two non-aligned states. Valencia can be comforted in knowing that US presence operations in the SCS will challenge all nations’ excessive claims.

Valencia also cautions that a FON operation in the proximity of China’s artificial islands is ‘dangerous’ and ‘may well backfire’ if Chinese ships and aircraft confront US ships conducting the operation. Such a confrontation, Valencia warns, would force the United States to ‘put up’ and risk escalation or ‘shut up’ and stand down, ‘which would show weakness, damage its reputation and generate doubt about its commitment to its friends and allies’.

US Secretary of Defense Ashton Carter has repeatedly stated that the United States ‘will fly, sail and operate wherever international law permits. We will do that at the times and places of our choosing, and there’s no exception to that’, including the SCS. Secretary Carter has made clear the United States’ enduring commitment to freedom of navigation. Failure now to exercise US navigational rights and freedoms in the SCS would undoubtedly show weakness, damage America’s reputation in Asia Pacific and resurrect doubts about the administration’s commitment to regional security.

Valencia additionally believes that the United States underestimates the ‘zeal of China’s nationalist movement’ and that conducting FON operations could result in an international armed conflict. As a maritime nation, US national and economic security always has been dependent on safe and secure use of the world’s oceans. The United States has often gone to war to preserve its maritime rights. Perhaps China does not appreciate the United States’ zeal to preserve its right to ply the world’s oceans — an inherent freedom guaranteed to all nations by international law. It is also questionable whether China is prepared for armed conflict. It would fan nationalism at home, but China would find itself encircled and isolated if it were to engage in such a reckless move.

Finally, Valencia points out that ‘China has never threatened commercial freedom of navigation’ and that the United States appears willing to risk conflict by ‘conflating the right of commercial freedom of navigation with the right of military vessels and aircraft to undertake provocative intelligence probes’. Valencia once again misses the mark. All ships and aircraft enjoy the navigational rights and freedoms guaranteed to all States by UNCLOS and customary international law. Commercial and military navigational rights and freedoms are one and the same.

The US FON Program is not provocative. Operations are deliberately planned and professionally executed in accordance with international law, neither calling attention to nor deliberately concealing them. President Xi Jinping has stated that China’s reclamation activities in the SCS are not intended to militarise the SCS islands. If that is true, China should have nothing to hide and should not feel threatened by the presence of non-provocative warships and surveillance aircraft enjoying rights of freedom of the seas.

Captain Pedrozo is a fellow in the Stockton Center for the Study of International Law at the Naval War College and 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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