January 24, 2022

The Japanese press has claimed that Japan has conducted "freedom of navigation operations" in the South China Sea. This claim has spread around the world. However, it is not true in the common understanding of the term. Worse, it has led to potentially dangerous confusion and may give the wrong impression to Southeast Asian countries and China.

 

According to English-language press reports, the Yomiuri Shimbun quoted unnamed government sources as saying Maritime Self-Defense Force (MSDF) warships sailed "through waters near the artificial islands and reefs claimed by China in the South China Sea." This is true. But the word "near" is critical. They did not enter China's claimed 12-nautical-mile territorial seas.

 

Yomiuri also quoted a senior Defense Ministry official as saying "the operations were meant to warn China, which is distorting international law to protect freedom of navigation and the law and order of the sea." Maybe something has been lost in translation, but in English this is not true.

 

These Japanese naval transits were not "freedom of navigation operations" as initiated and undertaken by the US. Unlike US FONOPs, they did not challenge China's requirement for prior notification for warships to undertake innocent passage in its territorial sea nor its sovereignty claims to low-tide features like Mischief Reef.

 

These so-called operations "were conducted while traveling to or from joint drills with other navies, or deployment to the Middle East." They were an exercise of freedom of the high seas that is not opposed by China.

 

Moreover, the articles and pundits make too much of these transits. The confusion was compounded by such experts as Alessio Palatano of King's College London, who said, "This is a step up which brings Japanese behavior much closer to other major maritime powers. It's clear political signaling…."

 

These transits were not a legal challenge to China and their political import is exaggerated. Joint military exercises between Japan's MSDF with the US and others have far more political import.

 

More important, Japan should not want to emulate the US on this. US FONOPs claim to demonstrate and protect freedom of navigation and to challenge claims that violate that principle. This is a red herring. Other than the normal safety practice of a temporary ban on vessels and aircraft in the vicinity of its military exercises, China has never tried to interfere with commercial freedom of navigation.

 

The US disingenuously conflates freedom of commercial navigation with "freedom" of its military vessels to intimidate and spy on other countries -in this case China.

 

In particular, the US abuses the concept of freedom of navigation to challenge China's claims to sovereignty over certain features like Mischief Reef that are below water at high tide and thus not subject to sovereignty claims by any state. It also challenges China's straight baselines enclosing the Paracels as well as its requirement of prior permission for warships to enter its territorial sea.

 

It also repeatedly violates China's requirement of permission to undertake scientific research in its 200nm exclusive economic zone (EEZ) that is supported by the UN Convention on the Law of the Sea (UNCLOS). The US argues that its provocative intelligence, surveillance and reconnaissance probes are military surveys-not marine scientific research -and therefore do not require such permission.

Because the US is not a party to the UNCLOS that it often quotes, China cannot take it to compulsory arbitration on this matter. But Japan is a party, and can be taken to arbitration under its auspices.

 

Indeed, Japan's claim to an EEZ and continental shelf around Okinotorishima is not supported by the Convention nor by the precedential decision of the international tribunal against China that it and the US continue to push China to comply with.

 

Although no country should acquiesce to claims that it considers illegal, such non-acquiescence can be effectively and sufficiently demonstrated by verbal and written diplomatic communiqués.

 

Indeed, diplomatic protest rather than gunboat diplomacy is more consonant with the UN Charter that requires that "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 territorial-sea regimes could be interpreted as a threat of use of force against the territorial integrity of a state. Indeed, "the 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."

 

Moreover, US FONOPs are ineffective in that they have not changed China's policies or stopped its actions that the US declares unlawful.  

 

Japan should also consider China's reaction to it undertaking a FONOP. China views them as a threat. After a February 2019 US FONOP near Mischief Reef, Chinese Foreign Ministry spokeswoman Hua Chunying said, "The relevant actions of the US warships violated Chinese sovereignty, and undermined peace, security, and order in the relevant sea areas…."

Hua said Chinese warships and aircraft were dispatched to "warn off the US destroyers." If Japan's MSDF assets actually did challenge China's territorial-sea regime in the South China Sea by entering its claimed territorial sea without permission or its sovereignty claims by violating the innocent passage regime in its claimed territorial sea, then China might well retaliate.

 

Moreover, FONOPs by Japan would not be welcomed by many of the region's countries. After an October 2018 near-collision between a Chinese warship and a US warship undertaking a FONOP, Singaporean Defense Minister Ng Eng Hen said, "Some of the incidents are from assertion of principles, but we recognize that the price of any physical incident is one that is too high and unnecessary to either assert or prove your position."

 

Philippine President Rodrigo Duterte has said that "the threat of confrontation and trouble in the waterway came from outside the region." Then-Malaysian prime minister Mahathir Mohamad argued that "big warships [in the South China Sea] may cause incidents and that will lead to tension."

 

There is no current threat to commercial navigation by China in the South China Sea and there is unlikely to be so in peacetime. Japan should not get involved in US-like military challenges to China's maritime claims there.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.

Link:https://asiatimes.com/2022/01/confusion-over-japans-naval-transits-of-south-china-sea/