On Jan. 30, the U.S. Navy sent a warship within 12 nautical miles of a disputed islands in the Paracel Islands in the South China Sea. China, which claims broad rights over much of the South China Sea, has called it an incursion into its territory, a needless provocation, and an attempt at causing trouble amongst China’s neighbors. What precedent is there for these close calls in disputed maritime territories to escalate? How close was this close call? Had things in fact calmed down in recent weeks, as the Chinese official press claimed, only to be stirred up again needlessly by this latest move?
China has criticized the recent U.S. Navy operation sailing within what it considers its territorial waters in the South China Sea as needlessly provocative. In China’s view, the U.S. Navy has purposely inflamed tensions in the region in order to stir up opposition to China. While it is true that tensions have risen, and probably will continue to increase, in the South China Sea region over the past few years, the “freedom of navigation” operations (FONOPs) that the United States has conducted cannot fairly be blamed for either creating or increasing these tensions. Why?
First, it is important to keep in mind that the FONOPs like the one China recently protested are part of a U.S. Navy policy that has been carried out all around the world since at least 1979. China is hardly the only country that has been the target of these operations. According to the U.S. Department of Defense, in 2014 the U.S. conducted similar FONOPs challenging excessive maritime claims by countries as diverse as Argentina, Brazil, Ecuador, India, Indonesia, Iran, Libya, Malaysia, Maldives, Nicaragua, Oman, Peru, the Philippines, Sri Lanka, Taiwan, Venezuela, and Vietnam. During that same year, the U.S. also conducted numerous FONOPs targeting excessive Chinese maritime claims along China’s mainland coast. But China’s Foreign Ministry did not condemn those FONOPs with the same heated language it is using today. Nor did Chinese state media attack the U.S. actions “provocative.” It is China, and not the U.S., that has transformed these relatively routine operations into a source of bilateral and regional tension.
Second, the U.S. FONOPs do not in any way challenge China’s territorial claims in the region. Rather, as the U.S. has stated repeatedly that the FONOPs are intended only to protect the “freedom of navigation” guaranteed under international law. Thus, the U.S. made clear that when its naval ships recently sailed within 12 nautical miles of a Chinese-claimed island or land feature, those ships operated under the rules of “innocent passage.” This phrase, codified under Articles 17 and 19 of the United Nations Convention on the Law of the Sea, guarantees “ships of all States” the right to pass through a territorial sea as long as that passage is not “prejudicial to the peace, good order or security of the coastal State.” In practical terms, this means the U.S. naval ships conducted a transit with all of its military capabilities (such as fire control radars and other weapons systems) shut down. Indeed, by limiting its transit to “innocent passage,” the U.S. is actually giving a great deal of respect to Chinese territorial claims (perhaps more than they actually deserve).
For this reason, it is more likely that China, and not the U.S., is the main cause of increased tensions and potential conflict in the region. Most prominently, China has sharply increased its presence by building artificial islands on top of reefs or underwater land features claimed by other countries in the region. It has also increased its use of state-owned coast guard ships in the region to expel non-Chinese fishermen from its claimed territorial seas. The execution of a standard U.S. naval program that has been in operation for nearly 40 years, and which does not even specifically target China or its territorial claims, seems pretty minor by comparison.
The public response by the Chinese Ministry of Foreign Affairs (MoFA) to the recent FONOP is interesting. On Saturday, January 30, the day the operation took place, a spokesperson stated that the operation violated a 1992 Chinese law requiring foreign warships to seek prior approval from the Chinese government before entering China’s territorial seas. Accordingly, Chinese personnel on the island the USS Curtis Wilbur sailed past last weekend responded with “monitoring and shouting at the ship.”
On Monday, February 1, however, a different MoFA spokesperson provided a different description of China’s response, saying Chinese troops and naval ships immediately identified the U.S. destroyer and swiftly warned and repelled it. This new description is identical to the one provided by the defense ministry in its public response to the sail and may have simply borrowed.
It is possible that the Foreign Ministry’s initial description of Chinese response was inaccurate because it was not as privy to what happened on the front lines as was the Defense Ministry, although this would suggest a troublesome lack of coordination between the two ministries in managing the South China Sea situation. A more plausible explanation, however, is that the Foreign Ministry was compelled to provide a stronger narrative of China’s response because nationalistic voices inside China are already criticizing the government for being too soft. Yet, the stronger response of “warning and repelling” in fact revealed China’s relevant restraint. Such restraint was also displayed last October in its “monitoring, tracking, and warning” response to the USS Larsen’s FONOP near Subi Reef in the Spratly Islands. In neither case did China’s naval or coast guard vessels try to intercept or ram U.S. ships.
Chinese restraint is good news for regional peace. Beijing is sending the message that it doesn’t want a fight with the U.S. over these operations. But at the same time, it is deeply unhappy with U.S. military assertions. And, under mounting nationalist pressure, there is no guarantee that Beijing will be able to maintain restraint in responding to future FONOPs. If the U.S. continues to press China without at the same time showing conciliatory gestures, Beijing may come to the conclusion that it has no choice but to arm the islands in order to fend off U.S. threats.
China has no problem with freedom of navigation as a general principle of conduct at sea. But it has a big problem with FONOPs as a U.S. military policy. Who gives the U.S. the right to use military power to enforce its own interpretation of freedom of navigation? Is military power really the best way to safeguard freedom of navigation? Who should be responsible in the event of conflict? These are all legitimate questions China — and many other countries — can ask about FONOPs. The U.S. should seize the current window of opportunity offered by Chinese restraint and start a serious strategic dialogue with China over freedom of navigation in the South China Sea. Further muscle-flexing may have tragic consequences.
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