American Freedom of Navigation Operations in the South China Sea

BY MONTE R. BULLARD | IN-DEPTH PIECE

American Freedom of Navigation Operations (FONOP) policy in the South China Sea, sometimes focused on the Spratly Islands (Nansha) and Paracel Islands (Xisha) within the South China Sea, is clearly based on incomplete information.  A review of official reports, like the America First National Security Strategy (AFNSS) and the Defense Department’s Annual Report to Congress 2018 on China’s Military Power, indicates that the government writers and reviewers of these documents when describing whether China is a strategic threat or a strong economic competitor almost always come to the conclusion or just assumed that China is a threat.  We note that even the Harvard Belfer Center paints China as a threat as do two excellent articles in the Winter 2018 edition of the Naval War College Review.[1] We have already written one blog that offers a critique of the AFNSS.  This blog is to point out weaknesses in some official and academic reports.

Intelligence analysts, whose jobs are to identify national security threats, are caught in a box.  If they fail to predict a threat that turns into a conflict it is considered an “intelligence failure.”  These are words no intelligence analyst wants to hear.  If, however, they predict a doomsday scenario or a threat that never materializes their job is secure.  Analysts, for good reason, are also told to point out “worst case scenarios” so American forces can prepare properly. The institutional bias is clear. Government reports cannot be completely objective.

The case of China in the South China Sea is an excellent example. Certainly, the potential threat has to be identified, but by introducing a form of value-free analysis the degree of threat can be softened and that could modify policy options.
           
China is accused of “militarizing” reefs (low tide elevations) that they have turned into islands.[2]   They have introduced airstrips that can land and have landed H-6k bombers and they have placed guided missiles and troops on the artificial islands. China claims the islands are its sovereign territory and they have the right to defend them.  The U.S. and others claim that China is a maritime threat to international shipping lanes of commerce contrary to the 1982 UN Convention on the Law of the Sea (UNCLOS 1982) and other international law (discussed below). China is described as an expanding strategic military threat as well as an economic threat in that they want to control fishing rights and natural resource (mostly petroleum and natural gas) exploitation in the area. 

Already there are four problems with the U.S. official descriptions of the issue.  The first is the term “militarizing.” It is obvious that installing a bomber-capable airstrip and placing missiles on the islands are militarizing the area.  On the other hand, we can argue that the U.S. sailing of aircraft carriers, destroyers, and guided- missile frigates that carry far more fire power into the area is also considered militarizing the area.

The second problem is suggesting that China’s militarizing is designed to interrupt the shipping lines through the area. The shipping commerce that transits the South China Sea consists primarily of ships carrying goods to and from China, which begs the question of: why would China want to threaten any navigation through the area that is vital to its economic stability and prosperity?

The third problem is when the U.S. rationalizes its accusation using UNCLOS 1982 since the U.S. has not ratified the Convention.  But the issue of the South China Sea is much more complex.  Nearly all of the U.S. documents fail to mention that there are major efforts between China and the other nations with claims in the area to solve the disagreements diplomatically and peacefully.  None of the U.S. documents mention the Declaration on the Conduct of Parties in the South China Sea (DOC) which was signed in 2002 by all the ASEAN nations and China. In 2011 China also signed an Accord with Vietnam, which includes setting up a hotline, on the maritime issues and a Guideline Document with the ASEAN members on the implementation of the DOC. In 2012 another ASEAN and China Joint Statement was signed highlighting the peaceful relationships. There was a standoff over Scarborough Shoal between China and the Philippines in 2012 that included cyber and economic attacks, but it was generally settled peaceably. In 2016 the parties signed another agreement with China to reaffirm the initial Declaration on Conduct.   It was called the 2016 Joint Statement of the Foreign Ministers of  ASEAN Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea.  These documents show a major diplomatic effort on the part of China to solve the issues of the South China Sea peacefully.

Finally, the notion that China, because of the islands, represents a strategic military threat to U.S. interests is almost laughable. If the U.S. and China were to become engaged in a kinetic military conflict there is little doubt that China’s islands could be neutralized or destroyed completely within a few hours by U.S. Navy surface or submarine fired missiles or U.S. Air Force bombs from B-52s based on Guam.[3]
 
So, what is the issue and why does the U.S. insist on unilaterally challenging the peaceful status quo situation in the area.
 
THE 9-DASH LINE
 
China bases its claim to most of the South China Sea and the islands, rocks and reefs therein on history. Other claimants use international law based on topographical continental shelf rationale or being part of an archipelago. Vietnam though has also used history to bolster its claim.  In addition to China, six others (Vietnam, Philippines, Brunei, Malaysia, Indonesia and Taiwan) claim territory within China’s claim outlined by its 9-dash line. Taiwan’s claim is identical to China’s. Nobody is sure when the 9-dash line was first articulated, but 1947 is considered by many as the first time China displayed maps with the 9-dash line.  

It should be noted that in the 16 years since the 2002 DOC agreement there have been no serious armed conflicts between the claimants and all except Brunei occupy one or more islands or rocks.[4]  All the challenges since the agreement have been diplomatic. The Philippines and Vietnam, like China, have also improved and militarized islands on reefs and it was the Philippines that won a UN International Court of Arbitration Case against China in its claim to some of the islands in 2016.  This UN document is the best, albeit complicated and a bit convoluted, description of the challenge to China’s “historical” claim and the Philippines counter claim.  The document does not make clear how to handle the new islands not part of the Philippine claim. China did not participate in the Arbitration proceedings and has formally stated that the Arbitral Tribunal has no jurisdiction over the dispute. They note that under international law there is the “freedom of every State to choose the means of dispute settlement.”

While China has not challenged the occupation by others of islands, rocks or reefs, it has stated that the reefs it has expanded into islands are China’s sovereign territory and therefore merit international protection and that includes a prohibition of any ships passing within the 12-mile territorial limits of the island. There have also been claims to an Exclusive Economic Zone around the islands, but the Arbitration Decision and UNCLOS 1982 discounts them and China has not pressed the issue.  Further, China has actively attempted to sign agreements with the other parties for the joint exploitation and sharing of petroleum and gas in the areas.
 
U.S. POSITION
 
The U.S. official position is not clear.  In some documents it appears as though China is a strategic threat and any expansion into the South China Sea represents a military threat of some sort.  In other documents the U.S. rationale is to protect sea lines of communication against some undefined Chinese threat of disruption. The U.S. also states in its formal 2017  Defense Department Report to Congress on Freedom of Navigation Operations (FONOPS) that it must send military ships to cross the 12-mile area around China’s claimed islands “to protest maritime claims that are excessive under international law.”[5]  China as a strategic threat is not mentioned in the rationale for penetrating the 12-mile limits. 

FONOPS complement, and are based upon Department of State protestations of what DOS considers to be “excessive maritime claims” and those are based upon the “longstanding U.S. national interest freedom of the seas.”[6] China is only one of 22 countries that are considered to have some form of excessive maritime claim. The FONOPS are not sanctioned or suggested by the U.N., any other international agency or even by the nations involved.  The U.S. in this case is playing the role of world policeman under its own direction.

In 2010 Secretary of State Hillary Clinton called upon China to resolve the territorial differences.[7]  China responded by saying the U.S. should stay out of it. While China has entered into agreements with ASEAN to peacefully negotiate differences they still rely more on bilateral relationships and agreements and the U.S. is not party to either approach.

Under the Trump administration, the U.S. has carried out FONOPS by sending U.S. Navy guided missile destroyers and cruisers (USS Decatur, USS Higgins, USS Antietam and USS Chancellorsville) through the Chinese territorial claims.[8][9] In November 2018 the U.S. sent two Carrier Battle Groups (USS Ronald Reagan and USS John C Stennis) into the Philippine Sea.[10] These operations are militarily provocative to China and the supporting rationale for carrying them out is weak. To counter China’s growing economic influence in the region and beyond with Carrier Battle Groups is ludicrous. Since China is working to resolve differences in South China Sea territorial claims by peaceful diplomatic efforts and is making some progress, the U.S. should stay out of it and refrain from provoking potential military confrontations in the area.  Any U.S. naval operations in the South China Sea must be based on a comprehensive review and actual definition of China as a threat and, in support of that conclusion, a clear exposure of China's expansive naval strategies that undermine U.S. national security.  This approach would be in stark contrast to the current one that tends to make broad generalizations based on incomplete information that China is a 'threat'.  In the case of the South China Sea, this analysis falls short.

NOTES

[1] Naval War College Winter Review (2018).
Available at:  https://digital-commons.usnwc.edu/nwc-review/vol71/iss1/12/
 
[2] Eleanor Freund.  'Freedom of Navigation in the South China Sea: A Practical Guide​'. Belfer Center for Science and International Affairs, Harvard Kennedy School. (June 2017)
Available at: https://www.belfercenter.org/publication/freedom-navigation-south-china-sea-practical-guide
 
[3] David Brennan. 'U.S. Could 'Take Down' Man-made Islands in South China Sea If It Needed To, Says Pentagon Official'.  Newsweek. (June 2018).  Available at: https://www.newsweek.com/us-could-take-down-man-made-islands-south-china-sea-if-it-needed-says-pentagon-952451
 
[4] There clashes prior to 2002 with Vietnam (1974 and 1988). Available at: http://www.cnn.com/2011/WORLD/asiapcf/06/27/china.vietnam.timeline/index.html
 
[5]  Ankit Panda. 'South China Sea: Two US Navy Warships Conduct Freedom of Navigation Operation in Paracel Islands'. The Diplomat. Available at:  ​https://thediplomat.com/2018/05/south-china-sea-two-us-navy-destroyers-conduct-freedom-of-navigation-operation-in-paracel-islands/

[6] Department of Defense Report to Congress Annual Freedom of Navigation Report (2017).  Available at: https://policy.defense.gov/Portals/11/FY17%20DOD%20FON%20Report.pdf?ver=2018-01-19-163418-053
 
[7] Resolving S China Sea disputes vital: US​. The Sydney Morning Herald. (July 2010).  Available at: https://www.smh.com.au/world/resolving-s-china-sea-disputes-vital-us-20100723-10ov2.html
 
[8] Ankit Panda, US Navy Destroyer Conducts Freedom of Navigation Operation Near Gaven, Johnson Reefs. The Diplomat (October 2018).  Available at: https://thediplomat.com/2018/10/us-navy-destroyer-conducts-freedom-of-navigation-operation-near-gaven-johnson-reefs/
 
[9] Zhenhua Lu. 'US sends guided-missile cruiser to South China Sea to challenge ‘excessive’ Chinese claims'​. South China Morning Post. (December 2018).  Available at: https://beta.scmp.com/news/china/diplomacy/article/2175729/us-sends-guided-missile-cruiser-south-china-sea-challenge
 
[10] Liu Zhen. China tries to strengthen navy in face of growing US challenge to South China Sea claims. South China Morning Post. (November 2018).
Available at: https://www.scmp.com/news/china/military/article/2173715/china-tries-strengthen-navy-face-growing-us-challenge-south