Maintaining Peace in the South China Sea

From Nippon.com (Dec 12): Maintaining Peace in the South China Sea

China’s terraforming activities and territorial claims in the South China Sea have unnerved its neighbors in the region. The United States has made freedom of navigation operations near the Spratly Islands part of its strategy to address Chinese actions; they must be combined with diplomacy, as well as cooperation among America and its partners, to be truly effective.

After more than six months of debate within the Barack Obama administration about how to respond to China’s artificial island building, on October 27 the United States conducted a freedom of navigation operation (FONOP) within 12 nautical miles of Chinese-occupied Subi Reef, which has been terraformed through dredging. The operation was part of a continuum of FONOPs that the United States has conducted globally for decades. In fact, this was the seventh American FONOP in the South China Sea since 2011. Had it been conducted quietly, without leaks to the press, it would have been a normal and routine operation.

Although some experts charged that the United States botched the operation by conducting an “innocent passage” that implicitly granted China a territorial sea around Subi Reef, which in its natural state is a low-tide elevation, this represents a misunderstanding of UNCLOS, the United Nations Convention on the Law of the Sea. Since Subi Reef is located within 12 nautical miles of a rock also claimed by China—unoccupied Sandy Cay, which is entitled to a territorial sea under article 13 of UNCLOS—Subi can be used as a baseline from which to measure the territorial sea of the other feature. US government international lawyers therefore concluded that high sea freedoms may not apply around Subi Reef and advised the US Navy to conduct an innocent passage, which entails sailing directly through the waters inside 12 nautical miles without loitering or conducting military activity.

In choosing Subi Reef for the first FONOP conducted within 12 nautical miles of one of China’s artificial islands in the Spratlys, the United States opted to be cautious. Had Mischief Reef, which does not lie within 12 nautical miles of another land feature, been selected, a US naval vessel would have been required to conduct a non-innocent freedom of navigation operation that included performing a military activity, such as deploying helicopters or collecting intelligence by sailing with fire control radars on. Such actions were deemed as somewhat more provocative and thus judged to be a better choice for future FONOPs. In the aftermath of the Subi Reef operation, a US Navy source has hinted that the next FONOP will be conducted around Mischief Reef.

Sailing in Uncertain Seas

The legal status of many of the land features in the Spratlys is ambiguous, or at least undetermined. It is possible that the UNCLOS Arbital Tribunal will bring some clarity to this matter next year when it issues a ruling on the case brought against China by the Philippines. In the meantime, US FONOPs are asserting the right of ships to transit close to China’s artificial islands. With these operations the United States is demonstrating that China’s attempts to restrict navigational rights and freedoms around reclaimed features are unlawful, and that America will continue to uphold the rights of nations to sail, fly, and operate anywhere permitted under international law. Although China’s maritime claims remain vague, the Chinese military has warned US aircraft to leave the area, saying they were entering a “military alert zone” even when they were flying more than 12 nautical miles from Chinese-occupied features. There is no such concept as a “military alert zone” in international law.

The US destroyer that conducted the operation around Subi Reef, the USS Lassen, also sailed close to features in the Spratlys occupied by Vietnam and the Philippines that have also undergone land reclamation, albeit on a much smaller scale. This was intended to send the signal that the purpose of the FONOP wasn’t to single out China.

In addition to demonstrating US willingness to challenge Chinese attempts to restrict access or limit lawful navigation and overflight in the South China Sea, the Obama administration’s decision to begin conducting FONOPs close to China’s artificial islands is part of a strategy aimed at altering China’s behavior and reassuring regional states that America will continue to be a key provider of security in the Asia-Pacific. By accepting more risk, Washington hopes to successfully counter the Chinese campaign of coercion and ensure that a stable, rules-based order prevails. Before the United States began to sail close to China’s islands in the Spratlys, it was avoiding risky behavior and emphasizing crisis management with China, which left the impression that Washington feared escalation and was unwilling to confront China. It is possible, however, for the American side to incur risk in the South China Sea, by conducting frequent FONOPS and undertaking other actions, while also pursuing confidence-building measures with China to avoid accidents and reduce misunderstanding about each other’s intentions.

http://www.nippon.com/en/currents/d00212/