By Mark J. Valencia
A recent article in The National Interest posed the question “Are [US] Freedom of Navigation Operations in East Asia enough? The article’s implied answer is “no”. https://nationalinterest.org/feature/are-freedom-navigation-operations-east-asia-enough-45257 But the answer to this question depends on the objective. If—as the article suggests—freedom of navigation operations |(FONOPs) are to demonstrate non-acquiescence to what the U.S. views as a violation of international law, they may be unnecessary.
The article, by James Holmes of the Naval War College, defines “freedom of the sea as the nearly limitless liberty to use the sea for mercantile and military pursuits”. This sweeping statement lumps freedom of navigation for commercial purposes with that for military operations with military objectives. They are both fruit – but they are apples and oranges. Indeed, the legal situation is complicated.
First of all, China has not threatened commercial freedom of navigation, and it is unlikely to do so in peace time. Moreover, the freedom of military operations in waters under the jurisdiction of other countries is far from “limitless”. China and many other states object to certain military activities that they believe do not pay ‘due regard’ to their rights as required by the UN Convention on the Law of the Sea (UNCLOS). They think that some of these activities violate UNCLOS provisions regarding their rights to demand prior consent for marine scientific research and to enforce their laws regarding environmental protection. They also believe that some of these military activities are an abuse of rights or for non-peaceful purposes that is prohibited by the Convention. Such activities include intelligence, surveillance and reconnaissance missions (ISR) in waters off their coasts and under their jurisdiction. The broad US interpretation of freedom for military purposes does not have much support in Southeast Asia. Several countries like Malaysia, Thailand, Vietnam and Indonesia have similar restrictions on foreign warships operating without their consent in waters under their jurisdiction including their exclusive economic zones and territorial seas.
The US argues that China’s requirement for prior permission for foreign warships to enter its territorial seas — the most frequent target of US FONOPs there–is not supported by UNCLOS. The treaty has been ratified by China and some 167 other parties. UNCLOS Article 24 supports the US position. It reads “The coastal State shall not hamper the innocent passage or 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 UNCLOS 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 US FONOPs protesting its claims are inconsistent with this provision.
Making the matter more muddled, there is no enforcement mechanism for UNCLOS or arbitration decisions made under its auspices. Although it is a party to neither, the U.S. has unilaterally assumed the role of enforcer of both. Put more bluntly, because the U.S. has no legal standing to have its concerns arbitrated under UNCLOS, it has turned to the threat of use of force using warships to demonstrate its disagreement with China’s claimed regimes.
Holmes argues that FONOPs are necessary to demonstrate disagreement and prevent an interpretation of acquiescence. But legal non-acquiescence can be demonstrated by less belligerent means like verbal and written diplomatic communiqués. Indeed, the diplomatic option seems to be sufficient for other nations in Asia including those whose rights the U. S. claims to be protecting.
Refraining from “in your face” gunboat diplomacy 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.” http://www.un.org/en/sections/un-charter/chapter-i/index.html Indeed, “[T]he 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.” https://thediplomat.com/2017/10/are-us-fonops-in-the-south-china-sea-necessary/
In the South China Sea, the U.S. has already raised the tension and stakes regarding China’s claims by increasing the frequency and aggressiveness of FONOPs. Yet Holmes’ suggests that this is not enough and that the “seafaring world should _ _ go to contested waters and stay in order to make a statement that resonates regarding freedom of the sea”.
This is a recipe for unnecessary and dangerous confrontation and possible conflict. First, there is the question of whether or not America and the American people have the material capacity and will to get involved in yet another simmering, open-ended Asian conflict that could well escalate and result in the loss of considerable blood and treasure.
But more fundamentally, why should the U.S. do this? It is not at all clear that US core national security interests are at stake because of China’s claims in the South China Sea. http://foreignpolicy.com/2017/08/17/stop-the-south-china-sea-charade/ As Ralph Cossa, then President of Pacific Forum CSIS, has said regarding the South China Sea, there is little to worry about—at least for the U.S. “The South China Sea is not and will not be a Chinese lake and the Chinese, even with their artificial islands, cannot dominate the sea or keep the US Navy out of it”. More specifically, retired Admiral Michael McDevitt of the Center for Naval Analysis asked skeptically “What vital US interest has been compromised? Shipping continues uninterrupted_ _ “. “https://ippreview.com/index.php/Blog/single/id/600.html
Holmes broader argument seems similar to that of Ryan Martinson and Andrew Erickson, also of the US Naval War College. They urge the U.S. to “re-orient” its sea power to challenge China in the South and East China Seas.
https://warontherocks.com/2018/05/re-orienting-american-sea-power-for-the-china-challenge/. They argue that stepping up US naval confrontation of China would “portray America as a protector of the vulnerable, a country true to its commitments, and a guarantor of the international –rules based order…”. However, it is more likely to be viewed as outside interference by the U.S. in regional affairs, acting on its own in its own self-interest and attempting to preserve its role as regional hegemon. Indeed, many already see such provocative US actions like FONOPs and ISR probes as destabilizing, and would likely view the implementation of this recommendation as making the South China Sea situation worse for them –not better.
A ‘might makes right’ approach is not a shining example of international behavior for other nations– including China. If the U.S. steps -up its naval confrontation of China it risks increasing tension and inviting a political and physical response. In sum, FONOPs are not legally necessary to demonstrate non-acquiescence. Moreover a stepped up permanent US naval presence in the South China Sea would be unwelcome by the bulk of the region’s countries and could well end in confrontation and disaster for all concerned.
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