Introduction

Stiftung Wissenschaft und Politik German Institute for International and Security Affairs Comments

The United States, China and the Freedom of the WP S Washington’s FONOPs Conflict with Beijing Michael Paul

After several years of restraint, the United States conducted its latest freedom of navi- gation operation in the South China on 22 January 2016. Three weeks later Presi- dent Barack Obama hosted a conference of the ASEAN heads of state and government in California to discuss the opportunities for reducing tensions in the region, which is witnessing spiralling conflicts between China and its East Asian neighbours over island territories and their resources. Rather than contributing to a deescalation, China fanned the flames by stationing missile batteries on Woody Island, which is also claimed by Taiwan and Vietnam. Alongside that regional conflict, the South China Sea is also turning into an arena of conflict between Beijing and Washington. Amidst different interpretations of maritime law and the Convention on the (UNCLOS), the question of whether the “” is upheld or curtailed will have con- siderable geopolitical and strategic military consequences.

On 27 October 2015 the guided missile de- theless, this opera- stroyer USS Lassen (DDG-82) passed less than tion (FONOP) was intended to demonstrate twelve nautical miles from a Chinese-built Washington’s determination to accept no outpost on Subi Reef in the South China Sea. restrictions on its freedom of navigation in The reef has been occupied by China since this region. 1988 and forms its northernmost outpost Months of controversy preceded the in the Spratly Islands, close to the Philip- naval manoeuvre. High-ranking representa- pines. Since July 2014 the Chinese have tives of both parties in Congress, including transformed Subi Reef into a base measur- Senator John McCain, Chairman of the ing almost four square kilometres. The Senate Armed Services Committee, and Bob Americans officially described their opera- Corker, Chairman of the Senate Committee tion as a routine move in accordance with on Foreign Relations, had called on Secre- , and denied that they tary of Defence Ashton Carter and Secretary were taking sides in the competing terri- of State John Kerry to respond to shifts in torial claims in the South China Sea. None- the status quo in the region. A policy of re-

Dr. Michael Paul is a Senior Fellow in SWP’s International Security Division SWP Comments 15 March 2016

1 straint could be a “dangerous mistake”, said exclusive zones would leave the South McCain: “If you respect the twelve-mile limit, China Sea looking like a Swiss cheese, then that’s de facto , agreed to gravely obstructing freedom of navigation tacitly.” in one of the world’s most important sea Washington had in fact for years ignored routes. The same would apply if China had the implications of Chinese expansionism its way and up to 90 percent of the South in the South China Sea. The USS Lassen’s pa- China Sea came under Chinese control. trol was the first FONOP in this region since Such a development would call into ques- 2012 but there was great controversy over tion the existing liberal order. what message it was actually supposed to convey. Subi Reef is a “low-tide elevation” under Article 13 of the Convention on the Opposing Principles: Law of the Seas (UNCLOS), generating no “Mare liberum” vs. “” claim to territorial sea in the sense of a Under UNCLOS, the “high seas” comprise twelve-mile zone. To that extent the course all waters where no coastal state exercises of the US warship was no “innocent passage”, sovereign rights. That does not, however, as that applies only in , give the coastal states a free hand to define which these were not. Some argued, how- their own territorial waters. Clear limits are ever, that the USS Lassen’s passage within set on the seaward extent: territorial sea is twelve miles implied American recognition restricted to twelve nautical miles at most, of China’s claims. That assertion is contra- the (EEZ) to no dicted by maritime law and geography, more than two hundred. because Subi Reef is located close to Sand Unlike China, which joined in 1996, the Cay, a small island (claimed by China, United States has never signed UNCLOS. On Taiwan, the Philippines and Vietnam) that 10 March 1983, President Ronald Reagan does possess a twelve-mile zone. declared that: “the United States will recog- The passage of the USS Lassen was intended nize the rights of other states in the waters to underline that China’s base-building ac- off their coasts, as reflected in the Conven- tivities had not altered the status quo con- tion, so long as the rights and freedoms of cerning free navigation. Consequently, the the United States and others under inter- Americans treated the outpost erected on national law are recognized by such coastal a “low-tide elevation” as an artificial island, states.” Under its Oceans Policy, the United which may have a safety zone but no terri- States insists on exercising global naviga- torial waters. The patrol by the USS Curtis tion and overflight rights and rejects uni- Wilbur (DDG-54) close to Triton Island in lateral measures restricting them. January 2016 was directed against “exces- The fundamental principle upon which sive claims” by China and Vietnam. Here maritime law is constructed is the “freedom too, the passage occurred without the prior of the seas” (mare liberum) as defined by notification demanded by China and Viet- , who regarded the sea as a nam. common good for all humanity. By its very By ignoring artificial outposts and the nature, he argued, the sea was open to use associated claims to territorial sea, the by all. John Selden, on the other hand, pro- United States is acting to prevent the Chi- posed in his book published in 1635 that nese acquiring possession by default. While claims to exclusive rights existed in the the creation of artificial islands cannot be sense of a “mare clausum”. It was certainly undone, the claim to sovereignty, the asso- possible, he argued, to achieve and enforce ciated right to establish exclusive zones and state authority over parts of the seas by the ensuing restriction of freedom of navi- military means. gation can certainly be denied. Given the Ultimately the principle of freedom won rival territorial claims, recognition of diverse the day, as it lined up with the maritime in-

SWP Comments 15 March 2016

2 terests of the most important European apply only in territorial waters. The Chi- naval powers of the age. To this day, how- nese justify this expansion on the grounds ever, there is a counter-current, presently that the matter is not explicitly regulated supported by China, that seeks to place in the Convention on the Law of the Sea. more extensive maritime areas (and their Other states also claim exclusive rights. resources) under the control of the coastal Vietnam wishes to be informed before war- states. Such calls for a “terranisation of the ships enter its territorial waters. Like China sea” are acknowledged in UNCLOS, which and a string of other states (including Ma- does not exclude the possibility of change; laysia, India, Iran and Sri Lanka), Vietnam the initiative for this lies with the states. believes that coastal states are entitled to From the US perspective, the sea, as a regulate military activities in their EEZs. global commons, is subject to all the rights Three of these states – China, North Korea and liberties according to international and Peru – have already intervened directly law. This also applies to the “right of inno- (leading in the Chinese case to incidents cent passage”: Since ancient times coastal with American and Indian ships and air- states have subjected the strip of sea along craft). Altogether the EEZs account for more their coasts to their own jurisdiction. But than 30 percent of worldwide seas and because all seafaring states share an inter- oceans (and almost 40 percent in the Asia- est in accessing these coastal waters, both Pacific region). As well as parts of the Pacific, merchant vessels and warships enjoy the waters such as the Persian Gulf and the right of innocent passage – whether to pass Mediterranean could be affected if coastal through or to enter or leave the internal states restricted access. waters of a coastal state. The arrangement Acceptance of restricted access to for- also avoids international shipping being merly freely accessible waters would not forced to take long and potentially dan- only call into question existing maritime gerous detours. law based on the principle of the “freedom In this context, freedom of navigation of the seas”, but also create hairline frac- means that it is permissible to pass through tures in the global order. Ultimately “free the twelve-mile zone and the two-hundred- seas” cannot be taken for granted. For mile EEZ of a coastal state without obtain- many centuries “closed” areas existed, as ing prior permission (UNCLOS Art. 58). The for example the Persian Gulf or the South rules of innocent passage, under which mili- China Sea could become in future. tary activities are prohibited (submarines The US Navy has since 1945 borne the must surface and show their flag), apply costs and burdens of keeping shipping only within territorial waters (UNCLOS routes open and secure in the interests of Art. 17). That rule strongly implies that the . But that requires a correspond- right to conduct military activities such ing freedom of navigation. To that extent as exercises, manoeuvres and intelligence- using international law to restrict freedom gathering in the exclusive economic zone of navigation could be effective as an anti- is the same as on the high seas (UNCLOS access/area denial tactic (A2/AD). In the Art. 87). event of an intervention to protect an ally, China both interprets the rules more for example in East Asia or the Mediter- narrowly and goes beyond existing mari- ranean, the freedom of movement of air time law. It permits warships to enter the and sea forces would be heavily curtailed. twelve-mile zone only with prior permis- This would affect shipboard sensors and sion, even if the rules of innocent passage weapons, as well as submarines which are observed and military activities are would no longer be permitted to enter such avoided. Furthermore, China also seeks to waters submerged. Ultimately such a change apply the rules of innocent passage to the would have significant repercussions on EEZ, although under maritime law they the foreign and security policy of the United

SWP Comments 15 March 2016

3 States and its allies and on operational tary principles and historic claims, over aspects of military strategy and technology. which the United States and China dis- agree. That is what makes it so difficult to resolve the disputes, or even simply to Freedom of Navigation Operations prevent crisis escalation. Washington reacts to the global prolifera- Given that China is sticking to its claims tion of “excessive” maritime claims by and the US Navy intends to step up its FON actively demanding freedom of navigation. operations, latent escalation potential is the The FONOPs programme established in new normal in the South China Sea. 1979 contains a broad catalogue of meas- ures ranging from diplomatic notes with the request for clarification or withdrawal of claims to military action. In operations directed explicitly against “excessive mari-

© Stiftung Wissenschaft und time claims”, for example, US warships pass Politik, 2016 through contested areas. The deliberate vio- All rights reserved lation of coastal states’ claims ensures that These Comments reflect they cannot acquire possession by default. the author’s views. The Pentagon’s FON report for fiscal 2014 SWP lists activities against nineteen countries Stiftung Wissenschaft und including China. Issues over which Washing- Politik German Institute for ton took action against China included International and excessive straight baselines (from which Security Affairs the limits of territorial waters and EEZs are Ludwigkirchplatz 3­4 calculated), jurisdiction over airspace above 10719 Berlin the EEZ, and restrictions on foreign air traf- Telephone +49 30 880 07-0 Fax +49 30 880 07-100 fic passing through an Air Defence Identifi- www.swp-berlin.org cation Zone (ADIZ) without intent to enter [email protected] national airspace. During the same period, ISSN 1861-1761 US FONOPs also targeted Ecuador, Iran, Translation by Meredith Dale Nicaragua, South Korea, Taiwan and Viet- nam for excessive baselines. But most of (English version of SWP-Aktuell 14/2016) the activities affected countries restricting third states within their EEZs. While the measures used to assert the rules during the past thirty-five years have been unspec- tacular, they ultimately represent modern gunboat diplomacy. Operations in the western Pacific in connection with the Sino- American dispute thus always also involve a risk of incidents at sea or in the air. The Commander of the US Pacific Com- mand has announced that FON operations will grow in frequency, complexity, and scope. Indeed, one US maritime law expert believes that the freedom of navigation is currently as strongly threatened as it was during Imperial Germany’s unrestricted submarine campaign of 1915. At stake are not just a couple of outcrops, but elemen-

SWP Comments 15 March 2016

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