Freedom of Navigation Operations and the South China Sea

by Chris Borgen

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims. Other countries have also built on various islands and reefs, positioning for their own claims. But the scope of China’s activities had brought the issue back to the forefront.

The current flurry has been about the U.S.’s reaction and, in particular, whether the U.S. will use of “freedom of navigation” (FON) operations (previously discussed by Julian, here) in the midst of all this activity in the Spratlys.

According to the BBC, Hua Chunying, a spokesperson for China’s Foreign Ministry stated:

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight.”

On Tuesday, US Defence Secretary Ash Carter expressed “strong concerns” over island-building, and defended Washington’s plans.

“Make no mistake, the United States will fly, sail and operate wherever international law allows, as we do around the world, and the South China Sea will not be an exception,” he said at a news conference with the Australian foreign and defence ministers.

“We will do that in the time and places of our choosing,” he added, according to Reuters news agency.

According to the U.S. Department of State, the U.S. has undertaken such freedom of navigation (FON) operations since 1983 to “exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention.” This is a topic where one can see the U.S. refer explicitly and repeatedly to international law:

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.

Emphases added.

A year-by-year summary of Freedom of Navigation operations by the U.S. can be found on the U.S. Department of Defense website, here.

However, the BBC notes that:

The US might have mounted sea patrols in this area, but not for several years, our analyst says – and not since China began its massive building programme in the South China Sea.

A US military plane that flew near one of the islands in May was warned off – eight times.

The US now has to decide whether to send in its ships and risk confrontation, or back down and look weak, our analyst says.

How the situation evolves from here will depend in part on the reactions of other states that border the South China Sea or use its sea lanes.  Stay tuned…

http://opiniojuris.org/2015/10/14/freedom-of-navigation-operations-and-the-south-china-sea/

5 Responses

  1. The Chinese are trying to make a mockery of the Law of the Sea by formulating its own version of freedom of navigation. http://www.ecns.cn/voices/2015/10-13/184051.shtml
    “Indeed, there has no international law on innocent passage recognized by the entire international community, but it is undoubtedly necessary for all foreign warships to obey the relevant local rules and regulations should they attempt to cross other countries’ territorial waters, regardless of innocent intentions.” China is an aggrandizing power and till it is prevented by means of force, it will continue to “steal territory”.

  2. The term “freedom of navigation” is a bad choice of words. Its meaning varies according to the legal position or the national perspective you take. What is at stake here is not so much freedom of navigation as an actual situation, but the right of free access to the waters and skies in this crowded area. There is a crucial difference between Chinese and U.S. commitments to “freedom of navigation” in the South China Sea. This difference stems from the fundamental fact that while the United States upholds the notion of the global commons, China cherishes the idea of the “nine-dash line.” With this idea, Beijing considers the domain indicated by the “nine-dash line” as something like a sovereign realm it has lost to others and it is entitled to get back. China and the United States may share the same view when it comes to nautical freedom in most maritime areas on earth, but the South China Sea is a special case because of the “nine-dash line.” While Washington acknowledges the right of everyone, even its enemies, to freely access the waters and skies in this region, Beijing reserves the right to itself. When China says it guarantees freedom of navigation in the South China Sea, the tacit understanding is that as a benevolent power, it opens its gates to everybody, but others must respect its sovereignty.

    The popular phrase “land reclamation” does not convey the essence of China’s construction activities in the South China Sea. What Beijing is doing in the Spratly Islands is not merely land reclamation but changing geography. Ian Storey has called it “terraforming.” Carl Thayer has argued that it’s not land reclamation but “excising the maritime heart out of Southeast Asia.” The regional balance of power may not have changed very much, but the regional geography is being transformed. And the new geography will allow China to upset the regional balance.

    http://www.nationalinterest.org/feature/think-again-myths-myopia-about-the-south-china-sea-14096?page=3

  3. The nine-dash line (or the nine dotted line) is a figment of Chinese imagination with which it wishes to convince the international community that the entire South China Sea is part of Chinese territory. This Sea was never owned by China and there is no question of losing sovereignty over this Sea when it was not owned in the first place.

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