I have just read a recent opinion piece in the South China Morning Post by two American scholars who are of the view that conflict prevention in the South China Sea depends on China abiding by the existing rules of navigation, and that U.S. freedom of navigation operations do not themselves raise any risk of a maritime incident.
Referring to Article 53 of the United Nations Convention on the Law of the Sea, the International Court of Justice and the International Tribunal for the Law of the Sea must be satisfied that the claim is well founded in fact and law.
Applying the ICJ logic and standard here, this note will only state fact and law regarding the U.S. navigation operations without any finger-pointing or bombardment. The purpose is to let readers judge whether in fact the U.S. operations raise the risk of a maritime incident and decide whether the legal basis given for the operations hold water in international law.
The U.S. launched a high profile series of official statements that were covered in media reports about the operations in the South China Sea after the Lassen incident in October 2015. Based on the U.S. Defense Department’s annual freedom of navigation reports and the U.S. Navy Maritime Claims Reference Manual, the U.S. operations started in 1986 and gradually expanded the operational sphere from the East China Sea to the South China Sea. The China-U.S. aircraft collision incident in April 2001, which led to the death of one Chinese pilot and the emergency landing of a U.S. EP-3 spy plane, combined with the USNS Impeccable incident in March 2009, were maritime incidents resulting from the U.S. freedom of navigation operations — known as FONOPs — aimed at China.
Although it was the Obama administration that began to make use of FONOPs so that it could be involved in the South China Sea issue, it was the Trump administration that began to regularly carry them out. In fact, the Trump administration changed the way of planning FONOPs. It approved a package deal for the whole year for U.S. Navy ships sailing through waters claimed by China. This is quite different from the practice of the Obama administration where the operations are approved on a case-by-case basis.
The U.S. Defense Department has yet to release its annual freedom of navigation report for fiscal 2019. While there is no exact date required, the reports for 2017 and 2018 were released on Dec. 31. In 2018, the United States carried out seven freedom of navigation operations against China. For 2019, there will be no fewer, certainly, given the growing chorus of military and civilian leaders who have voiced their support for such operations against China.
The rationale for the U.S. raising its voice against China through the operations in 2015 is that China began construction projects on some islands the PLA had garrisoned for many years. On the face of it, as the U.S. is not a claimant in the South China Sea, freedom of navigation operations became the only straw it could grasp to have a voice in maritime issues there.
Both sides have also been clear that the core of the problem lies in strategic and geopolitical competition. Nevertheless, such operational confrontations are a reflection, more or less, of different understandings and interpretations of the applicable rules of international law.
The legal basis for the U.S. FONOPs is that it needs to challenge those states that made excessive maritime claims to the effect of putting legal restrictions on freedom of navigation. This argument raises several questions.
First, who is the neutral judge who can decide whether a maritime claim is excessive or not? The fact is that the U.S. has acted alone as the judge to decide on the excessiveness of a maritime claim and to conduct FONOPs accordingly. It is also a fact that neither the international community nor any rules of international law have given the U.S. such a responsibility to globally challenge excessive maritime claims.
Second, what is the benchmark used to determine the excessiveness of a maritime claim? Ideally, it should be the rules of international law, as generally accepted by the international community, such as the United Nations Convention on the Law of the Sea (UNCLOS). Not being a signatory to the 1982 UNCLOS, the U.S. instead makes its own judgments according to its own unilateral understanding and interpretation of the rules. This often gives rise to cases of American international law vs. international law. And the more the U.S. withdraws from multilateral and bilateral treaties, such as the Paris climate agreement and the Intermediate-Range Nuclear Forces Treaty, the deeper the conflict becomes between the two versions of international law.
One of the hotly debated benchmark issues is the exercise of freedom navigation in the South China Sea. The U.S. has long accused China of impeding freedom of navigation there. Yet, the fact is that there has been no report of any impeding of merchant ships in the region. Seaborne trade via the South China Sea has been in no way affected.
Once again, a small but effective trick is being played to deliberately conflate the rules of military and commercial navigation, whether in the official U.S. statements or media reports.
As for Glaser’s accusation that China violates the “rules of the road,” CUEs and other bilateral agreements, it also raises questions. First is whether the places where the U.S. warships have operated constitute public roads. Do rules of the road apply, or are these private roads where public rules do not apply? Second, will the police abide by the “rules of road” when chasing offenders who commit offenses?
The most contentious benchmark issue is the exercise of innocent passage of foreign warships in the territorial sea. The core issue is whether warships enjoy the same right of innocent passage as merchant ships, without prior notification or authorization. Both the 1958 Geneva Convention and the 1982 UNCLOS intentionally maintained ambiguity about this matter, as has been acknowledged by many Western authorities.
Despite the deliberate ambiguity of the treaties, the U.S. insists that all the provisions of the UNCLOS treaty, except for those that regulate deep-sea mining, reflect customary international law. While this argument offers leeway for the U.S. to pick and choose any rules to its advantage, it has no support in state practice.
Based on the database of the UN Division for Ocean Affairs and the Law of the Sea, among all the maritime states there are 49 that have enacted national legislation restricting the passage of warships, including ten countries in Asia, including China, India, Vietnam and South Korea. The number 49 is telling in itself.
One U.S. Defense Department lawyer leveled open criticism, saying that America “becomes unconvincing to our allies, as well as to the Soviets, however supported in the actual text which we, for whatever self-serving reasons, have refused to ratify.”
Elihu Root, who served as secretary of state under President Theodore Roosevelt and as the U.S. legal representative in the North Atlantic Fisheries case, argued: “Warships may not pass without consent into this zone because they threaten. Merchant ships may pass and repass because they do not threaten.”
Third, when the U.S. does decide that other countries’ maritime claims are excessive by its own standards, and then maritime disputes arise, how should those disputes be settled? Given that disputes between states have often led to wars, the UN Charter clearly provides that “all Members shall settle their international disputes by peaceful means” and “all members shall refrain in their international relations from the threat or use of force.” Yet, since 1949, the U.S. is the only state which, through its freedom of navigation operations as a state policy, applies military force to settle disputes.
Finally, the U.S. argues, as Bonnie Glaser said in her opinion, that its FONOPs are not solely against China but also apply to U.S. treaty allies with maritime claims. The truth is that the number of those claimants, as well as whether or not they are U.S. allies, does not add any credibility or legality to the operations. Even if the U.S. were to carry out FONOPs globally against all maritime states, that has nothing to do with whether those operations are lawful but only leads to more maritime incidents such as the infamous 1988 Black Sea bumping incident and two other incidents in the Gulf of Sidra in 1981 and 1989.
To sum up, I do agree with Glaser on one point: that the avoidance of maritime incidents does not depend on putting more rules in place. The key point is that the U.S. and China should apply a same set of rules, regardless of whether that means less or more. Therefore, conflict prevention in the South China Sea depends on the U.S. abiding by generally accepted international rules, not by its unilaterally interpreted American rules. Peace and stability in the South China Sea depend on the U.S. seeking peaceful means to settle maritime disputes rather than resorting to military force to enforce its unilateral interpretation of the rules.