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U.S. Freedom of Navigation Operations Carry Potential Risks

Apr 13 , 2016

Since 2015, the US has been conducting operations involving military ships and aircraft at the South China Sea, ostensibly for the Freedom of Navigation (FON). This culminated in a close encounter where USS Lassen transited within 12 nautical miles of a Chinese-administered reef, in a hardly veiled attempt to challenge China’s sovereignty claims and relevant measures. Moreover, some members of the US government and military said the country would disregard the defense facilities built by China at the reefs concerned and continue military operations in the name of FON, and even went so far as encouraging other countries to join the mission. In spite of the claim of the international law-compliant nature of these operations, the US assertion has no legal or moral ground to stand on whatsoever, and it was a dangerous move in and of itself.

First,the US based its operation on partial understanding of the UNCLOS, and it is not on sound jurisprudential ground. The US does not deem prior consent from coastal countries as necessary when US military vessels pass the sovereign waters of these countries concerned, believing US vessels are entitled to the right of innocent passage based on existing laws. While it is true that there is no specific provision for “prior permission” in the UNCLOS, nevertheless Article 21 says that “the coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following……”, and “Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations”. In the Law on Territorial Sea and Contiguous Zone of the People’s Republic of China published in 1992, it was provided that any foreign military vessels must obtain prior approval of the Chinese Government before entering into Chinese territorial sea. Hence, the Chinese law is fully consistent with the UNCLOS, and reflects the same provision.  In this vein, the US contradicted the UNCLOS both in terms of the letter and spirit of the law, when it sent B-52 bomber to operate within 12 nautical miles of Chinese reefs, and the USS Curtis Wilbur to within 12 nautical miles of artificial islands within China’s Xisha Islands territorial sea baseline, not to mention the danger these operations posed for Chinese personnel and facilities on these islands.

Second, the US military operations are the biggest driver of the militarization in the South China Sea. The US has harped on the militarization of the South China Sea, and cited China’s construction of runways, deployment of radar and an anti-aircraft missile system as reasons leading to such a scenario. But it is the legitimate right of any sovereign country, including China, to deploy defense facilities on its own territory as enshrined in international laws of self defense and protection. Whereas,the US has flexed its muscle in the South China Sea and adjacent waters by intensifying military deployment and operations, and among these moves are the deployment of P-8A Poseidon surveillance aircraft and the littoral combat ship to Singapore, pursuing a rotational military presence in the Philippines, and engaging Indonesia and Malaysia for the possibility of setting up US military bases in those countries. Also, the US has intensified military exercises in the South China Sea in terms of frequency and scale, such as sending destroyers and bomber planes to waters or air zones near Chinese reefs near the Nansha Islands and Xisha Islands, and encouraging southeastern Asian countries, along with Japan and Australia to participate in joint patrols along the disputed waters of the South China Sea, which adds to the tension in the area. Against this context, it is all the more imperative for China to strengthen defense at its own reefs. That said, China has exercised constraint and only deployed a limited amount of defensive weapons at Chinese reefs in the South China Sea, excluding anti-ship missile or bomber planes or any aggressive weapons. In the meanwhile, according to Article 25 of the UNCLOS, “the coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.” A comparison of the course of action of China and the US will reveal that it is the provocative actions of the US that fuel militarization in the South China Sea, while what China pursues is solely for defensive purposes, and nothing to do with so-called militarization.

Third, the US course of action is hazardous and risks triggering contingency events or even military confrontations. From the “Huanghai confrontation” in 1994, the plane collision at South Chin a Sea in 2001, to the more recent close-in surveillance operations directed at Chinese exclusive economic zones by US tracking ships and reconnaissance planes, all of these actions provoked confrontations or frictions between vessels from the two sides. The signing of the U.S.-China Memorandum of Understanding on the Rules of Behavior for the Safety of Air and Maritime Encounters provides a safety valve against any contingency in the area. Having said that, if the US persists in conducting FON operations in the disputed South China Sea waters, especially adjacent areas of Chinese reefs, or waters and air zones within China’s baseline territorial sea, the odds for potential contingency events are still out there. If one goes by the statements and actions of US officials, the US may further escalate its FON operations at the South China Sea, to cover more geographic areas, and even include the Huangyan Islands, or send military vessels to transit within 12 nautical miles of some reefs around the Nansha Islands, flying aircraft in the air zones of these areas. Also, the US may invite Japan, Australia and countries from Southeast Asia in joint patrol operations. Any of the above-mentioned scenarios would escalate the competition between US and Chinese navy and air forces at the South China Sea, both in terms of frequency and intensity, and hence significantly greater risks for contingency events or even military frictions between their frontline troops.

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