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US FONOPs Actually Conceded Maritime Rights to China

 
 

The United States Navy has now made it official: the Obama administration recognized China’s man-made islands in the South China Sea as sovereign Chinese territory.

Under that policy, the disputed features belonging to the Spratly Island group were now conceded by Washington to be as much a part of the People’s Republic of China as Beijing and Shanghai.

China’s purported acquisition of new territory was accomplished by two sets of acts–one, illegal, by China; the other, ill-advised, by the United States.

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First, pursuant to its fantastical nine-dashline claim of virtually the entire South China Sea as its own, China piled dredged coral and sand atop a series of low-tide outcroppings and proceeded to construct permanent features, including airfields and military facilities. This was all in violation of the United Nations Convention on the Law of the Sea (UNCLOS).

Beijing claimed these reefs as Chinese territory and demanded that the rest of the world recognize them as “islands” under the provisions in UNCLOS, entitled to the maritime protocols prescribed under the international law China had just flouted.

If complied with, China’s assertions would preclude further regular sea passages by the commercial and naval vessels of other nations. Instead of conducting normal transits and naval operations on what until now had been seen as international waters, foreign warships would have to restrict their operations to comply with the requirements for innocent passage (by, e.g., turning off radar and refraining from normal high seas exercises and maneuvers).

For good measure, Beijing also required foreign vessels to provide advance notice of transits — something international law does not require even within 12 miles of recognized coastal territory.

In the face of China’s brazen abuse of UNCLOS in the South China Sea, the United States confronted three choices: (a) It could defy China’s actions by continuing normal operations in the waters around the artificial islands through so-called Freedom of Navigation Operations (FONOPs), (b) It could ignore the issue by simply steering clear of  the waters claimed as territorial seas and leaving their status ambiguous, subject to later challenge, or (c) It could rhetorically protest China’s claims but then comply with them by transiting in innocent passage.

The Obama administration unfortunately opted for the third, and worst, course of action, proclaiming innocent passage as its FONOP and sending the U.S. Navy meekly through “Chinese territorial waters,” its military tail between its legs so as not to offend Beijing.  (It did avoid the whimper of giving prior notice, an empty Chinese demand that even the weakest of nations would not need to take seriously.)

This discouraging view of what occurred under the prior U.S. administration is confirmed by the recent publication by the Department of Defense (DoD) annual Freedom of Navigation Report. It lists by country the “excessive maritime claims that were challenged by DoD operational assertions and activities during the period of October 1, 2015 through September 30, 2016, in order to preserve the rights, freedoms, and uses of the seas and airspace guaranteed to all nations under international law.”

For China (and two other countries) the report describes one of the excessive maritime claims as “Prior permission required for innocent passage by foreign military ships through the TTS” (my emphasis) — indicating that the challenge was only to the notice demand, not the fundamental territorial sea claim. Granting the underlying territorial claim while challenging only the need for notice is at best a FONOP lite.

For most other challenges it states: “Prior authorization required for foreign warships to enter the territorial sea (TTS).” The absence of “innocent passage” from the larger group seems to suggest a more frontal challenge to maritime sovereignty claims, but the report does not make clear what kind of FONOPs were actually conducted in those cases.

What we do know is that over the past two years the United States made major concessions to China’s illegal claims. Those gratuitous concessions need to be rolled back by fresh new FONOPS under the Trump administration.

Joseph Bosco served as China country director in the office of the secretary of defense, 2005-2006.

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