US FON Ops and China’s Continuing Challenge

Originally published as Jabin T Jacob, China’s aggression in South China Sea a global challenge’, Hindustan Times, 4 November 2015.

In late October, the American destroyer USS Lassens sailed within a 12 nautical mile territorial waters limit claimed by China at Subi Reef in the South China Sea. China has no right to such a claim under the United Nations Convention on the Law of the Sea (UNCLOS) and the US was exercising its rights to freedom of navigation under the Convention.

Predictably Beijing has protested while others have cheered the US action but American freedom of navigation (FON) operations are nothing new and have been carried out regularly in other seas despite the fact that the US itself has not ratified UNCLOS. In the South China Sea itself, the US has carried out FON operations previously to counter excessive maritime claims by Malaysia, the Philippines, Taiwan, and Vietnam.

The reclamation activities carried out by China and other claimants are part of these excessive claims even though under UNCLOS, they do not enhance sovereignty or change their legal status. Nevertheless, Chinese reclamation outstrips those of the others by a wide margin and has clear implications for over-flight and freedom of navigation in the region despite Beijing’s rhetoric to the contrary. While actual conflict would render these distant Chinese outposts vulnerable, they are extremely useful short of such a situation to harass and deny other parties and thus change the facts on the ground. This ensures Chinese sovereignty de facto if not de jure.

Meanwhile, the US is also clear that it is not taking sides in the South China Sea sovereignty disputes.

Legal Cherry-picking

China’s territorial claims are based on “historical rights” that other parties in the region do not recognize. At the same time neither China with respect to its nine-dash line in the South China Sea nor the other disputants have actually clearly defined their claims.

China has also been selective in its application of international law. It has, for example, sought to restrict innocent passage of foreign ships through its territorial sea under a national law in contravention of UNCLOS principles but exercised the same right of innocent passage in early September this year when PLA Navy ships transited through American territorial waters in Alaska on their way back from exercises with Russia.

Thus, China’s territorial claims and actions and American FON operations also raise questions about the nature and development of international law. If international law is about practice and precedent, then the Chinese are not just trying to change ground realities by their construction activities in the South China Sea but also attempting to set new precedents that will change international law as it currently stands and is supported by the West.

Possibilities of Conflict?

What of the chances of conflict? The US and China certainly understand the consequences of conflict. The US had previously also ignored the Chinese-declared air defence identification zone (ADIZ) over the East China Sea to little Chinese response. In the latest instance, too, sabre-rattling notwithstanding, Beijing will not actually seek a fight it knows it cannot win. Even a stalemate might potentially threaten the Communist Party in power.

The USS Lassens’ passage was the first time since 2012 that the US had conducted a FON operation in the area. In the interregnum, China has reclaimed more than 2,000 acres in territories it claims. This in itself shows that the US has largely been restrained in confronting the Chinese and cautious about setting off conflict no matter how limited or weak China’s naval assets.

In fact, China mostly employs non-PLA Navy vessels including merchant vessels and fishing boats to enforce its territorial claims. It is these boats that can create an incident or be responsible for an accident involving US Navy or other navy ships while the PLA Navy itself stays at a safe distance. The blame in such incidents could be more easily pinned on the larger and armed American vessels or be dismissed by the Chinese as a case of over-enthusiastic Chinese civilians trying to protect the national honour. Either way, China could potentially damage or limit operations by expensive US naval assets.

Thus, it should not surprise that despite the USS Lassens’ passage, the Chinese and American navy chiefs were quick to agree on the need to stick to established protocols at sea and to declare that their bilateral military exchanges would continue.

No turning back

All this said, there is no question of China backtracking on its sovereignty claims or not continuing reclamation in the South China Sea. If things get too hot, it will likely bide its time and wait the US out in the full knowledge of the American reluctance to get involved in yet another theatre of conflict. China is also well aware that many rival claimants lack the naval capabilities and often, the political will, to confront China directly given their economic dependence on it and that neither the US nor any other regional power such as India or Japan will support its rivals in any significant way.

China will continue to provoke and maintain its ‘forward policy’ in the South China Sea. This is a reality that the USS Lassens episode does not change and therein lies the challenge for the international community.

 

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