Freedom of Navigation - Trump Version

We’ve previously noted that the infrequent Freedom of Navigation (FON) actions by the US Navy in the South China Sea have done more harm than good, legally, by serving to reinforce China’s claims of sovereignty.  The actions were carried out as “innocent passage” which is a prescribed method (see the UNCLOS documents for the exact procedure) for warships to pass peacefully through the waters of another country.  By conducting the FON actions as innocent passages, they served to bolster China’s claims since innocent passage can only be applied to another country’s territorial waters.  Thus, the US was implicitly recognizing China’s claims.  Alternatively, some FON actions were conducted at greater than 12 miles from any disputed islands or lands which, again, bolsters China’s claims of sovereignty. 

Had the US wanted to dispute China’s sovereignty claims, the FON actions should have studiously avoided following innocent passage procedures or observing the 12 mile territorial limit. 

Interestingly, the Navy has just recently executed a FON action near Mischief Reef in the Spratly Islands that explicitly ignores the innocent passage procedures.

“A U.S. destroyer sailed within six nautical miles of a Chinese artificial island on Wednesday in the strongest challenge of hotly debated Chinese claims in the South China Sea, USNI News has learned.

Around 7 P.M. EST on Wednesday (7 A.M. Thursday local time), USS Dewey (DDG-105) passed within six nautical miles of the Chinese installation on Mischief Reef in the Spratly Island chain, several U.S. officials confirmed to USNI News

The guided-missile destroyer operated normally and did not conduct the transit under the rules of an innocent passage – the restrictions that allow a warship to pass through another country’s territorial waters with no notice.

The ship was within 12 nautical miles of Mischief Reef for about 90 minutes zig-zagging in the water near the installation. At one point during the operation, the ship’s crew conducted a man overboard drill, a U.S. official told USNI News.” [emphasis added] (1)

This is good news in a minimalist sense.  At least this FON did no further legal damage.  Presumably, this change in policy is due to the new Trump administration.

On the other hand, this kind of FON serves no concrete purpose if the other side, the Chinese in this case, choose to ignore it.  It does not hinder development of artificial islands or bases.  It does not blockade any Chinese actions.  It does not lodge an official protest with the UN.  It does not establish a “counter-island” developed and controlled by the US.  In short, it does nothing but offer a silent, unspoken, token, symbolic protest in the mildest manner possible.

Previous FON actions have clearly done nothing to dissuade China from their expansionist policies and actions in the South and East China Seas.  FON actions, even this type, accomplish nothing but ratcheting up tensions.  We need to either back out of the area and concede the South and East China Seas as Chinese territories or begin taking concrete, productive actions along the lines we’ve discussed in previous posts and comments.

As a reminder,

“Unlike other Chinese artificial islands in the South China Sea, the Mischief Reef installation isn’t subject to overlapping territorial claims from any other country and is built on a low-tide elevation, as determined by the 2016 Hague tribunal ruling on Chinese claims in the South China Sea.

Under the U.N. Law of the Sea Convention [UNCLOS], a low-tide elevation cannot be claimed as the territory of any country and does not command a territorial sea.”

China, you’ll recall, is a signatory to UNCLOS and, therefore, bound by it’s rules and regulations.  Despite this, China is actively violating several aspects and provisions of the agreement.

Setting aside the myriad political and economic actions that we could and should take, the following actions, which cover a range of intensity, should also be considered.

• Close, high speed passes to attempt to cause wake damage to island facilities
• Blockade of islands and bases
• Physical hindering of resupply ships
• Physical disruption of, and interference with, reclamation vessels
• Covert disruption of island facilities (SEAL missions)
• Electronic jamming of island communications

China is clearly on a militaristic expansionist path.  It is only a matter of time before China and US come to blows.  One can make a pretty compelling argument that it is better to do it now while China has not yet gained complete parity/superiority than to wait and do it under even less favorable circumstances.

If we’re not going to contest the South and East China Seas then we need to cede the area and retire from the region, diffuse tensions, and save the wear and tear on our ships and aircraft.  Of course, if we’re going to do all that, one can also reasonably ask why we need ships and aircraft.  We can cede entire regions without the use of our military!

Our policy of token resistance is having no positive effect whatsoever.  We need a new geopolitical and military strategy for the region.

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(1)USNI News website, “U.S. Warship Came Within 6 Miles of Chinese Artificial Island in Toughest Challenge Yet to Beijing South China Sea Claims

”, Sam LaGrone, 25-May-2017,

https://news.usni.org/2017/05/25/u-s-warship-came-beijing-south-china-sea-claims

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