November 1, 2017

By Mark J.Valencia

The Diplomat has recently posted several articles by myself and by Tuan N. Pham focusing on U.S. policy and actions in the South China Sea (SCS) in response to those of China. Pham’s latest in this series argues that if the United States does not “push back” against China’s actions in the South China Sea (SCS), “Chinese leaders will read continued passivity and acquiescence as tacit acknowledgement and implied consent to execute their strategic ambitions and strategies in the SCS unhindered and unchallenged.”

 

But the U.S. has not acquiesced to China’s claims and actions. On the contrary it has made and continues to make abundantly and repeatedly clear in word and deed that it does not and will not accept any Chinese claims, actions, and ambitions in the SCS that threaten its core national interests or those of its allies. Perhaps these efforts have not been as robust or effective as Pham would like, but there are other factors at play that U.S. decision making presumably takes into account.

 

Pham’s latest piece quotes from one of my articles at length regarding the use of lawfare by both China and the United States in the SCS. I am flattered by his use of my analysis in his work. But I do not (as Pham contends) argue that lawfare is “acceptable” — only that it is “understandable.” There is an important difference. I made no value judgment on the practice of lawfare.

 

Pham then describes the upgrading of U.S. FONOPs in the SCS, in that they will be conducted in “greater numbers [presumably meaning with greater frequency], be broader in scope and more complex.” This supports my first point that the United States is not acquiescing to China’s claims and actions.

 

Pham is apparently not satisfied with the U.S. response to China’s latest lawfare initiative, the “Four Shas”claim —which is really not new at all, although in the aftermath of the SCS arbitration decision against China’s nine-dash line claim it may carry more political and legal nuances. Pham argues that the United States must privately and publicly question the “Four Shas” in detail. Otherwise, “silence concedes the strategic initiative to Beijing and allows it to control the strategic narrative.” He goes on to urge the U.S. government to reverse its policy of silence and instead explain after the fact the “purpose and intent” of each FONOP.

 

I strongly agree that the U.S. government should do so — but for different reasons. It is not at all clear that some or even all FONOPs in the SCS are legally necessary. U.S. government explanations of each FONOP would allow neutral observers to judge for themselves the relative costs and benefits as well as the effectiveness and necessity of each one and to compare that to those of the alternatives.

 

No country should acquiesce to claims that it considers illegal. But non-acquiescence may be effectively and sufficiently demonstrated by verbal and written diplomatic communiqués. The diplomatic option seems to be sufficient for other nations, including maritime powers whose rights the United States claims to be protecting. They use verbal or written communiqués to publicize their official positions rather than “gunboat diplomacy.”

 

For example, the U.S. State Department’s publication “Limits in the Sea 117” makes crystal clear its official legal position regarding China’s straight baselines around the Paracels, which were the target of the October 10 USS Chafee FONOP. The document states that according to the UN Convention on Law of the Sea (UNCLOS) — which the United States has not ratified — no country would be allowed to establish straight baselines enclosing the entire Paracel Island group. The United States has also repeatedly challenged many other Chinese claims in the South China Sea operationally as well as verbally and in writing. These include China’s claims to excessive straight baselines elsewhere; jurisdiction over airspace above the exclusive economic zone; domestic law criminalizing survey activity by foreign entities in the EEZ; and most frequently, China’s requirement of prior permission for innocent passage of foreign warships through its territorial sea. The State Department’s “Limits in the Sea 112” clearly disputes most of these claims in detail.

 

Refraining from “in your face” use of warships in favor of diplomatic protest is more consonant with the UN Charter. It requires that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Use of warships to challenge claims could be interpreted as a threat of use of force, which is also a violation of the UN Charter. Indeed, according to William Aceves of California Western School of Law, “[T]he notion that states must take action which may lead to a violent confrontation or lose their rights under international law is inconsistent with the most basic principles of international law.”

 

Following this U.S. example, we would have a world in which every country that can muster force — think North Korea or Iran — uses threats of use of force to “demonstrate” their legal position regarding maritime disputes. Indeed, Russia or China or a coalition of countries could elect to kinetically challenge U.S. assertions of certain navigational rights under UNCLOS because the United States is not a party to that agreement. Do we really want to go down this path?

 

There are also problems with the U.S. operational assertions of the Law of the Sea in the South China Sea that go beyond the fact that it has not ratified the package deal agreement that it claims to be enforcing. Unlike in the Paracels, China and other claimants have not declared baselines in the Spratlys. Thus technically there is no claim by China or any other claimant to territorial seas around the features they claim and occupy. Therefore U.S. FONOPs in the Spratlys are preemptive challenges to potential claims. For claims that have not yet been made, it would seem that operational challenges are beyond normal international practice, to say the least.

 

Moreover, even given the political costs, if the United States still felt the need to kinetically challenge China’s claims, why does the U.S. Navy deem it necessary to repeat specific challenges (FONOPs) to specific claims as it often does? According to a U.S. Navy spokesperson, the Navy FONOPs are not “about any one country, nor are they about making political statements.” Despite such denials, it appears to many that the main reasons behind continued U.S. FONOPs against China are political. Indeed, some say that the FONOPs are designed to “reassure America’s allies and partners in the region of America’s commitment.”

 

To China, the U.S. FONOPs are indeed unnecessary — especially redundant ones. So are they really worth the risk of confrontation and conflict? The United States may wish to reevaluate the necessity of its FONOPs program – especially preemptive and redundant FONOPs, that unnecessarily provoke China. If there is any doubt, the United States should err on the side of comity rather than that of hostility and antagonism, especially regarding a matter perceived as a “core interest”  by a major power whose support Washington wants to meet other U.S. national security objectives.

Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.

Link:

https://thediplomat.com/2017/10/are-us-fonops-in-the-south-china-sea-necessary/  

 

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