China’s Weak Legal Basis for Criticizing the US Navy’s Freedom of Navigation Operations in the South China Sea

The US Navy executed a much anticipated “freedom of navigation operation” (FONOP) today within 12 nautical miles of Subi reef, the site of one of China’s artificial islands in the South China Sea.   Predictably, China has reacted sharply to this operation by sending two Chinese destroyers to shadow the U.S. ship and planes, summoning the U.S. ambassador, and issuing angry public statements (see below).  Although it is not the main focus of their complaints, the Chinese have repeatedly described the U.S. operation as “illegal” thus highlighting the legal conflict underlying this naval showdown.

The most detailed official reaction was presented by China’s Ministry of Foreign Affairs spokesperson Lu Kang.

The USS Lassen illegally entered waters near relevant islands and reefs of China’s Nansha Islands without the permission of the Chinese government on October 27. Relevant authorities of the Chinese side monitored, followed and warned the US vessel. Relevant actions by the US naval vessel threatened China’s sovereignty and security interests, put the personnel and facilities on the islands and reefs at risk and endangered regional peace and stability. The Chinese side hereby expresses strong dissatisfaction and opposition.

It is unclear exactly how the U.S. ship put personnel on the islands and reefs at risk, but in any event, the spokesperson went on to assure the world that China has, and always will, respect the freedom of navigation consistent with international law.

China’s Deputy Foreign Minister Zhang Yesui echoed these remarks, although this statement focused more on China’s “indisputable sovereignty” than on the legality of the U.S. actions.  China’s Foreign Minister Wang Yi simply warned the U.S. against “stirring up trouble.” Perhaps more seriously, China’s Defense Ministry spokesperson called the U.S. action an “abuse” of the principle of “freedom of navigation under international law” that would cause “harm” to bilateral trust and relations.

As I suggested in a previous post, the US and China might have chosen to downplay this incident by treating the U.S. naval visit as an “innocent passage” through China’s territorial seas.  But China believes even innocent passage requires its permission, and the U.S. Navy made sure that its destroyer was accompanied by naval surveillance aircraft. The inclusion of the aircraft makes it clear that the U.S. is not trying to claim an “innocent passage.” Rather, the U.S. is stating (through its actions) that it does not believe Subi reef (where the Chinese have added an artificial island) is a rock or island generating a territorial sea.  Therefore, US naval vessels should be free to conduct any activity they wish in this area.

It is interesting that at least one Chinese media outlet is claiming that there is no real conflict over international law between the two sides.  In this portrayal, China’s actions in building artificial islands is “completely legal” and the U.S. is just trying to flaunt its power by “harassing” China.  China’s legal position appears to be that it is building artificial islands on reefs that are entitled to a 12 nautical mile territorial sea.  Or, as another commentator sympathetic to China’s position has argued, because China claims every land feature in the South China Sea, even if the relevant reef is not entitled to a territorial sea, other nearby land features (also claimed by China) probably generate such rights.

In my view, the U.S. has a much stronger legal position.  Indeed, China is barely offering any serious legal defense other than repeating the words “indisputable sovereignty” repeatedly.  China is not doing itself any favors by calling US actions illegal, but failing to offer any specific criticism or explanation of its own legal position.

On the other hand, perhaps it is China’s interest to downplay the legal aspects of this dispute, and to feed the narrative that the U.S. is “provoking” a confrontation.  To some degree,this is working, as the global and Chinese media are feeding the narrative about a US-China naval showdown and ignoring the niceties of the U.S. legal position.  Indeed, if China raises the stakes by threatening some military response (as it is getting close to doing), it will be hard to convince the world (or the U.S. public) that such a conflict is worthwhile in order to vindicate an abstract legal principle like “freedom of navigation.”