Freedom of Navigation in the South China Sea: A Modus Vivendi between the US and China?
By Feng Zhang

Freedom of Navigation in the South China Sea: A Modus Vivendi between the US and China?

Mar. 10, 2016  |     |  0 comments

Since last year, the United States has made freedom of navigation a central issue in the seemingly escalating tensions now roiling the South China Sea. On October 27, 2015, the USS Larsen, a guided-missile destroyer of the US navy, sailed within 12 nautical miles of Subi Reef, one of the seven reefs currently being constructed by China in the Spratly island chain of the South China Sea, which is in part or wholly claimed by China, Vietnam, Malaysia, the Philippines, Brunei, and Taiwan. Three months later, on January 30, 2016, another destroyer, the USS Curtis Wilbur, sailed within the territorial sea of Triton Island in the Paracel island chain of the South China Sea, which is controlled by China but also claimed by Taiwan and Vietnam.

Chinese Restraint

In both cases, US operations and Chinese reactions at sea were relatively restrained. The US intended to carry out its self-styled military-diplomatic policy of “freedom of navigations operations” (FONOPs) to challenge what it perceived as China’s “excessive maritime claims.” In both the Larsen and Wilbur incidents, however, US ships acted in accordance with “innocent passage” as specified in the United National Convention on the Law of the Sea (UNCLOS), without intentionally conducting provocative military activities while transiting these waters.

China’s Ministry of Foreign Affairs (MFA) and Ministry of Defense understandably protested against these events. But their public protests revealed Beijing’s underlying restraint rather than assertiveness. According to an MFA spokesperson, China responded to the Larsen incident with monitoring, tracking, and warning. In response to the Wilbur incident, the MFA initially described China’s reactions as “monitoring and shouting at the ship” but subsequently modified the description to “warning and repelling the ship” without specifying how the repelling was done. Regardless, Beijing has chosen not to confront US ships at sea. In neither case did its naval or coast guard vessels try to intercept or ram the US ships.

Thus, it would seem that US FONOPs and Chinese reactions are a good example of a strategic show put up by the US on the stage of the South China Sea and played along — albeit grudgingly — by China that is less than meets the eye. The US is not about to challenge China’s territorial claims or de facto control over the islets already under its possession. It only challenges what it perceives to be China’s excessive maritime claims, such as a Chinese law requiring foreign warships transiting its territorial waters to seek prior approval from the Chinese government. And China is not going to respond by firing at US ships or blocking their passage.

This is good news for regional peace and stability. But can China’s relative restraint persist into the future? The action-reaction mode as seen from the Larsen and Wilbur incidents is largely harmless, although hardly satisfactory. But if the US were to up the ante by disregarding “innocent passage” and conduct military activities within the territorial waters of Chinese-controlled islets, will Beijing still be able to maintain a restrained posture amid rising domestic nationalistic voices calling for tough action? Yet raising such stakes is exactly what many analysts inside the US are urging the Obama administration to do. Moreover, the Pentagon has already declared that it intends to make its FONOPs against China a routine affair, perhaps at the frequency of two operations per quarter. How long can China tolerate such regular muscle-flexing by the US in waters near its shores?

Thinking Long Term

In conducting FONOPs, the US needs to think seriously about long-term consequences as well as short-term benefits. At the moment, it seems to focus entirely on short-term benefits. A particular short-term benefit is regaining US initiative in the region’s evolving strategic trends. In this it is perhaps succeeding to some degree. Not only have the recent incidents forced China back into a reactive mode, but the US has also garnered substantial regional support for its operations, not just from its treaty allies of Japan, Australia, the Philippines, and South Korea, but also from nominally neutral states such as Singapore and even claimant states such as Vietnam. As a result, China is facing increasing diplomatic pressure from the US and the coalition of countries the US has been building to support its FONOPs.

If the US were to disregard "innocent passage" and conduct military activities, will Beijing be able to maintain a restrained posture amid rising domestic nationalistic voices?

But Washington cannot yet declare victory. China has so far withheld diplomatic pressure, and it may be able to withhold it for quite a long time. More substantively, America’s stated goal of compelling China to clarify its maritime claims to the South China Sea is not being reached. As many observers point out, maintaining legal ambiguity seems to be Beijing’s deliberate policy. Indeed, its restrained reactions to the Larsen and Wilbur incidents reflect this policy. As long as US operations are conducted within limits and are not provocative enough to trigger a military response, China will feel no need to clarify its claims. Indeed, the pattern is already established by the Larsen and Wilbur incidents: US ships can come and go, China will warn and protest, but nothing substantive will happen. In fact, it is questionable whether China will feel compelled to clarify its legal claims even in the event of a low-intensity military standoff with the US at sea. The strategy of using FONOPs to force China to clarify its claims is therefore likely to fail, except perhaps in extraordinary circumstances such as a major conflict between the two sides.

Nor are FONOPs going to be effective in preventing China from building islands in the Spratlys. In fact, in this area, the US doesn’t have much leverage. Contrary to claims from many US and regional experts, China’s building activities are not themselves illegal under UNCLOS. The legal status of these new islands is of course an important question for future maritime claims. But China has not clarified those claims and, as argued above, more FONOPs will not necessarily result in clarifications. Whether and to what extent China will build up its Spratly islands are entirely up to the Beijing leadership, although, of course, in making these significant decisions, they will have to weigh a range of factors both domestic and international.

So, how long can the US sustain FONOPs against China without producing tangible results either in forcing China to clarify its legal claims or in halting island building activities, while in the process stoking Chinese anxieties, increasing tensions, and raising the specter of military accidents? US planners may think that with sufficient patience and persistence, and with regional support from allies, partners, and newly acquired friends such as Vietnam, FONOPs will eventually be able to impose enough diplomatic costs on China to force some rethinking from the Chinese leadership. That may be. But the actual Chinese response will depend on a number of factors, not least the personal inclinations of President Xi Jinping.

In fact, China may go the opposite way of what the US and regional states expect. That is, rather than backing down in the face of mounting pressure, President Xi may feel that he has had enough affront from a US-constructed regional coalition intentionally targeting China and decide that it’s time to fight back by arming the new islands with fighter aircraft and surface-to-air missiles in order to fend off US threats. The South China Sea is, of course, already militarized by US naval patrols and exercises. But China’s decision to arm the islands will exacerbate the region’s militarization and possibly trigger a dangerous arms race between China and its rivals. That is a very negative long-term consequence of FONOPs. But it is possible, and it is one that the US needs to take into account when seeking short-term advantages of imposing immediate costs on China.

Washington has already made a highly visible military-diplomatic point and embarrassed Beijing by the Larsen and Wilbur incidents. Beijing understands that, coming under increasing strain, it has lost some strategic initiative in the evolving situation and is struggling to come up with an effective and respectable response. More FONOPs are likely to drive China into a corner, fuel popular nationalism that will put further pressure on the leadership, and eventually trigger a tough military response that the leadership might not have wanted to take under more manageable circumstances. The task for the region now is to lower tensions, but US FONOPs are doing exactly the opposite.

The Questionable Legitimacy of FONOPS

Moreover, FONOPs, as it was instituted by the Carter administration in 1979 and carried out since, is really a unilateral military policy of the United States. Unless the US can establish regional, international, and multilateral support for it, its legitimacy as an approach to safeguarding freedom of navigation in the global commons is highly questionable. Who gives the US the right to use military power to enforce its own interpretation of freedom of navigation? There is no authorization from any international or regional organization, not even coordination with its allies. Meanwhile, the US decides for itself what constitutes the “excessive maritime claims” of other countries, without consulting those countries or relevant international institutions. Granted that freedom of navigation needs protection and that some countries’ maritime claims may be excessive, but is asserting military power in the manner of FONOPs really the best way to do so?

Who defines “excessive maritime claims”; which countries or international institutions have the right to take concrete actions to safeguard freedom of navigation; is military force the best instrument — these are all legitimate questions that can be asked about FONOPs. In conducting FONOPs, the US claims to safeguard the rule-based liberal international order. But a rule-based international order demands diplomacy and international institutions to solve disputes in the first instance, not unilateral assertions of military power. The US claims that its failure to ratify UNCLOS does not undermine its effort to uphold the treaty’s principles in practice since UNCLOS reflects customary international law. But while the principles it upholds may be true to UNCLOS, its FONOPs approach is rather anti-UNCLOS since UNCLOS would call for diplomatic rather than military means to safeguard freedom of navigation.

The US intention of sending warships to convey legal points to China is strange to say the least. First of all, it is far from clear that muscle-flexing is the best way to make a legal point. In fact, showing off military power may quite possibly backfire. Second, China cannot have been a worse target for this approach. Given their insensitivity to international law in the South China Sea disputes, many in China have simply missed this legal message and taken FONOPs for what they appear to be — assertions of American military power bordering on gunboat diplomacy to humiliate China. Even if they did notice the message, they would regard it as another example of US hypocrisy — using liberal rationales to conceal its “realist” interests of maintaining naval hegemony in the South China Sea.

If modern China succeeds in becoming a maritime power, its attitudes toward the sea will change, and it will come to value freedom of navigation as a strategic interest.

In the end, the legal points the US professes to make to China are less consequential than preserving unfettered strategic access to the South China Sea region, and this may be the fundamental purpose of FONOPs. The US global strategy is fundamentally a maritime strategy based on unimpeded access to international waters. Freedom of navigation is thus a vital strategic interest for the US military because it provides the foundation for its global mobility and strategic access to major theatres of operation including the Western Pacific. The US is becoming increasingly concerned with China’s island building in the South China Sea because its military planners fear that China may one day use these islands to deny the US navy access to this vital region. That is why the US Pacific Command has been aggressively championing freedom of navigation since last year. But the critical issue is not really about commercial shipping — it would be suicidal for China to restrict the movement of commercial shipping in the South China Sea since that is one of the lifelines of its economy. The real issue is military access and thus strategic competition between the two countries over the strategically important waters of the South China Sea.

Is the US worry about China’s intention to restrict the freedom of the US navy justified? As it has found out by the Larsen and Wilbur incidents, at the moment at least, China has no intention to restrict US military access to the South China Sea. The US may still worry about China’s intentions and capabilities in the future. But the best way to address these concerns is to start a serious strategic dialogue with China rather than to conduct more of the same FONOPs. Although FONOPs may bring tactical advantages and short-term benefits to the US as outlined earlier, it has serious opportunity costs and long-term consequences. Is the US prepared to take responsibility for security risks and even military accidents and crises with China because of its continued FONOPs? Can it afford to lose the opportunity to reach a modus vivendi with China by privileging FONOPs over strategic dialogue?

FONOPs cannot be justified on liberal grounds; it is not a good policy for preserving strategic access from a realist perspective either. For too long, it has remained an obscure policy of the US military that has escaped public scrutiny, even inside the United States. Now is the time to start a serious international debate about its merits.

Reaching a Modus Vivendi

The US intention to preserve freedom of navigation and unfettered access to the South China Sea is understandable from the standpoint of its military strategy. But China has no problem with freedom of navigation as a general principle of conduct in international waters. It has in fact repeatedly pledged to safeguard freedom of navigation understood in this sense. But it does have a big problem with FONOPs as a unilateral US military policy. As a unilateral show of force, it will always appear provocative to many Chinese eyes.

In fact, freedom of navigation can become an important common interest between the two countries. Although at the moment China still complains about US military activities near its shores, it will itself gradually begin to appreciate the importance of freedom of navigation and maritime access when it becomes a true sea power in the future. Historically, China’s international outlook is largely continental and landlocked, despite occasional spectacular bursts of interests and activities at sea, such as the case of Admiral Zheng He’s overseas voyages during the early 15th century. But if modern China succeeds in becoming a maritime power, its attitudes toward the sea will change, and it will come to value freedom of navigation as a strategic interest, much in the manner of Great Britain during the 18th-19th centuries and of the United States now.

When that happens, the South China Sea may become an area of collaboration between China and the US, and it will be the small powers of Southeast Asia that will have to worry about the China-US duopoly in their neighborhood. For now, the two countries need to find a modus vivendi during the current round of tensions due to China’s island construction and US FONOPs. The purpose should be to lower tensions and keep the lines of communication and dialogue open. Diplomacy, bilateral or multilateral, rather than a largely meaningless show of military force, will be the best way to do so. The situation is not dire, but it will require the wisdom of both Beijing and Washington to navigate toward a more positive development in the near future.

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