US Freedom of Navigation Operations Carry Potential Risks

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By Jia Chunyang

A comparison of the course of action of China and the US with their operations in the South China Sea will reveal that it is the provocative actions of the US that fuel militarisation in the South China Sea, while what China pursues is solely for defensive purposes, and nothing to do with so-called militarisation.

 

Since 2015, the US has been conducting operations involving military ships and aircraft at the South China Sea, ostensibly for the Freedom of Navigation (FON). This culminated in a close encounter where USS Lassen transited within 12 nautical miles of a Chinese-administered reef, in a hardly veiled attempt to challenge China’s sovereignty claims and relevant measures. Moreover, some members of the US government and military said the country would disregard the defence facilities built by China at the reefs concerned and continue military operations in the name of FON, and even went so far as encouraging other countries to join the mission. In spite of the claim of the international law-compliant nature of these operations, the US assertion has no legal or moral ground to stand on whatsoever, and it was a dangerous move in and of itself.

In the Law on Territorial Sea and Contiguous Zone of the People’s Republic of China published in 1992, it was provided that any foreign military vessels must obtain prior approval of the Chinese Government before entering into Chinese territorial sea.

 

First, the US based its operation on partial understanding of the UNCLOS, and it is not on sound jurisprudential ground. The US does not deem prior consent from coastal countries as necessary when US military vessels pass the sovereign waters of these countries concerned, believing US vessels are entitled to the right of innocent passage based on existing laws. While it is true that there is no specific provision for “prior permission” in the UNCLOS, nevertheless Article 21 says that “the coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following…”, and “Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations”. In the Law on Territorial Sea and Contiguous Zone of the People’s Republic of China published in 1992, it was provided that any foreign military vessels must obtain prior approval of the Chinese Government before entering into Chinese territorial sea. Hence, the Chinese law is fully consistent with the UNCLOS, and reflects the same provision. In this vein, the US contradicted the UNCLOS both in terms of the letter and spirit of the law, when it sent B-52 bomber to operate within 12 nautical miles of Chinese reefs, and the USS Curtis Wilbur to within 12 nautical miles of artificial islands within China’s Xisha Islands territorial sea baseline, not to mention the danger these operations posed for Chinese personnel and facilities on these islands.

 
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About the Author

Jia-Chunyang-14249223914XMRJia Chunyang, PhD, is assistant research fellow with the Institute of American Studies, Chinese Institutes of Contemporary International Relations.