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.
What an excellent legal and political rebuttal against threats and fallacies previously, published by Mark Valencia of the National Institute for SCS Studies Haikou, China.
Question for Captain Pedrozo concerning Chinese claim of no FON incident in the SCS, to date: how do international laws see dozens of ramming and sinking of Filipino and Vietnamese fishing boats by Chinese Coast Guards and/or para-military vessels – in disputed waters where China has no sovereignty right but within EEZ rights of the Philippines and Vietnam ?
Thank you Cathy – while China says it does not interfere with FON in the SCS, as you correctly point out, interfering with Philippine and Vietnamese resources rights in the SCS clearly interferes with FON in the SCS, as does China’s interference with US and other nations’ military activities in the SCS. China appears to take the position that only merchant vessels enjoy a right of unimpeded passage through the SCS, a position that is clearly inconsistent with international law, including UNCLOS.
According to DoD’s FON Program Fact Sheet, FON is justified apparently on different grounds, one of which is empirical and demonstrable and the other seemingly based on mere US views and considerations which may or may not accord with international law.
First the US FON Program is built around the concept that US “will not …acquiesce in unilateral acts of other states designed to restrict the rights and freedom of the international community.” In the FON Fact Sheet, DoD traced the program to words of the US presidents at the start of WWI and WWII where doubtless freedom of the seas was threatened. It would appear then in the current US FON undertaken in the SCS, China must have unilaterally acted to restrict the rights and FON of other nations. Perhaps Captain Pedrozo would kindly supply us with such acts of China designed (with the intent) to threaten or restrict the international community’s freedom of navigation?
If no such unilateral act of China can be demonstrated, then perhaps this SCS FON was undertaken based on the justification that China has “asserted maritime claims the United States considers to be excessive — that is, such claims are inconsistent with the international law of the sea and impinge upon the rights, freedoms, and uses of the sea and airspace guaranteed to all states under that body of international law.” But this second basis for the FON is on shaky grounds as is the case for the 19 FONs in 2014.
For in examining these FONs, it can only be concluded that they were mostly NOT conducted when rights were being abridged but as a result of state claims that US considers excessive. But then US view of excessive claims is equal to inconsistency with international law of the sea as explained in the aforementioned quote. Aside from the fact that the international law of the sea is seldom so clear-cut as to make interpretation unnecessary, does that not make the Ash Carter (Secretary, DoD) saying a truism that the United States would sail or fly wherever international law, i.e., US, allows?
Just to name a few unilateral incidents of interference with FON in the SCS/ECS/YS
2009 Impeccable Incident
2009 Victorious Incident
2011 INS Airavat Incident
2011 M/V Veritas Voyager Incident
2011 Binh Minh 02 Incident
2011 Viking II Incident
2012 BRP Gregorio Del Pilar Incident
2012 Binh Minh 02 Incident
2014 Second Thomas Shoal resupply Incident
2014 Unsafe intercept/maneuvers of Navy P8
2015 Use of water cannons against RP fishermen
2015 Ramming Vietnamese fishing boats
2015 Unsafe intercept/maneuvers of Navy P8
There are more, but that gives you a flavor of China’s illegal activities at sea.
Most of these incidents are basically spats between countries which have overlapping claims to certain features and islands in the SCS. Mostly they are cases of one country claiming to have suffered hostile activities from the other side while the other country claims the opposite, that is hostilities from the other side actually precipitated certain responses. It all depends on whom you believe in these ‘he-said, she-said’ incidents and therefore could hardly be called unilateral actions of interference, so much as allegations of.
The closest for the US to possibly impute China with the intent to threaten FON may be what CNN titled “A Secret Navy Flight over China’s military buildup” May 26, 2015 on its website. It should be noted that at the same time of the Navy P8 overflight, a Delta passenger flight was in the vicinity. “The Chinese navy radio operator identifies himself, possibly to reassure them,” which shows that the intent to threaten commercial FON was not there. However China has objected to certain US surveillance/intelligence collection. Is the US using an abstract principle to protect its freedom to collect intelligence from a competitor/adversary, disregarding the fact it may endanger friendly US-China relations and destroy mutual trust? Worse still, according to the CNN website, Michael Morell, former CIA Deputy Director, told CNN’s Erin Burnett that even such confrontations as the US Navy P8 with Chinese navy “indicates there is ‘absolutely’ a risk of the U.S. and China going to war sometime in the future.”
Would not a much publicized designed-to-show-China US SCS FON op rock the boat? Surely the answer is in the affirmative.
Re: Raul Pedrozo’s Freedom of navigation not rocking the boat in the South China Sea: A Rejoinder
I want to thank Mr. Pedrozo for zestfully regurgitating the U.S. government position. I am glad he agrees with me. As he says “there are always risks associated with conducting FON operations”. The crucial question is ‘do the benefits outweigh the risks?’. Mr. Pedrozo would argue that they do–although it
is not clear how “failure to conduct a FON in the vicinity of China’s manmade islands will cause irreparable harm to U.S. strategic maritime mobility and credibility in the Asia-Pacific”.Other countries may not agree it is worth the risk to regional stability, including apparently Australia which has declined to join the FON exercises. This is particularly so if-as Mr. Pedrozo says-China has not claimed any maritime zones from the features. But then why is the US undertaking these FON exercises –what is it demonstrating –other than how to tilt at windmills?
That aside, innocent passage must be continuous and expeditious–that is, the
vessel should be in transit from X to Y. In this case, the stated purpose is for
a warship—accompanied by other military assets- to go out of their way to
violate China’s domestic law. That seems to China to be provocative and a threat of use of force. Hopefully its response will be more measured and less belligerent than that of the U.S.
Mr. Pedrozo’s frequent reference to UNCLOS to support his arguments is ludicrous.The U.S.- not having ratified the package deal embodied in the Convention- has no credibility in picking and choosing which provisions it
wishes to abide by, let alone to deem them customary law and then unilaterally
interpret them to its benefit. This is the height of folly and arrogance.
Regarding the US FON challenging other claimants, I meant their claims from features in the Spratlys.
But the key sentence in Mr. Pedrozo’s diatribe is “The United States has often
gone to war to preserve its maritime rights”. This reveals his belligerent bias
and antiquated attitude. Many countries, especially in Asia, do not agree that
commercial and military navigational rights are “one and the same”. Indeed that
is why the US undertakes some provocative and risky FON exercises in the first place.The issue of US ISR activities off China’s coast is a separate matter. Some of these activities are probably a violation of the marine scientific research consent regime and others are “preparing the battlefield” and may indeed be construed by China as a threat of use of force. China and others believe that it is the US that is “militarizing” the region with its “pivot” and FON exercises.
In sum Mr. Pedrozo’s critique is a parroting of the US position. This is to be expected since that is part of his job. If he did otherwise it would indeed be astonishing.
I really cannot appreciate this demeaning of a relevant article simply because it is deemed to close to a state position. By any token, Mr. Valencia’s position seems close to CCP’s position in classifying US FON activity as irresponsible. Should we also brandish your arguments to the side and deem you a stooge for Beijing’s arguments?
The reality is, and it has been said before, thar the US pivot to Asia has been welcomed by most countries in Southeast Asia. Food for thought for China. And it certainly does not help that China has decided to militarise the SCS by building military bases there.